By Black Women’s Hands: Building Equitable Justice

LIVIA MARIA SANTANA E SANT’ANNA VAZ

Translated by Diane Grosklaus Whitty

Abstract

The article evinces the need for the inclusion of Black women in the Brazilian justice system if equitable justice is to be achieved. The intersecting oppressions of race and gender to which Black women have been subjected down through the colonialist, slave-owning history of Brazil are still conditioning Black women’s access to spaces of power, notedly in the Brazilian justice system. Data are presented that illustrate the effects of institutional racism and sexism on justice officials, particularly how the dearth of Black women – the most vulnerabilized social category in Brazilian society – produces a single, white-centric, androcentric interpretation that ultimately makes the achievement of justice a white man’s privilege. From this perspective, Black women find themselves at a kind of intersectional crossroads that, on one hand, reinforces their social vulnerabilities while, on the other hand, it potentializes their ability to foster an epistemological, hermeneutic transformation inside the justice system, aimed at building a system that incorporates gender and race equity.

Keywords: Black women, justice system, equity, race, gender

“A Black woman says she is a Black woman. A white woman says she is a woman. A white man says he is a person.” -- Grada Kilomba¹

1 Introduction

In July 2018, at the invitation of Rosetta Ross, professor of religion at Spelman College in Atlanta, Georgia, I sat on the panel “Building Institutions: Black Women Creating Spaces and Structures to Change the World,” which was part of the conference Embodying Courage: Black Women’s and Girls’ Lives Matter, held in Salvador, capital of the state of Bahia, Brazil.

From my place of speech as a Black woman and promotora de justiça² – or public prosecutor, to use the common translation – I was asked to expound on my thoughts about a reality that has always bothered me: the underrepresentation of Black women in places of power and decision making, notedly in the Brazilian justice system.³

Let me begin by addressing what I consider my place of speech⁴ – or at least my main one, since I have various, depending on the perspective. Publicly, I present myself first and foremost as a Black woman who serves as a public prosecutor, and not as a public prosecutor who is a Black woman. This is because my essence, whatever social role I am playing – mother, professional, activist, consumer, and so on – is and always will be that of a

Black woman. Put another way, being a Black woman is the condition that precedes and transcends being a female public prosecutor and that, because it is essential, imbues my professional life with intersectional meaning.

When I take part in an event in the judicial arena, I am often – better, I am almost always – the only Black woman speaker. When I expanded my work horizons beyond my native Bahia into other states, I realized the same is true elsewhere, but even more intensely, extending to audiences themselves in the case of national events, especially in Brasilia and in Brazil’s Southeast and South, and even more so when the audience comprises justice officials.

Race and gender are a subject’s main, most immediate marks of identity in society, conditioning the subject’s social relations and even the exercise of her or his fundamental rights. In this context, being a Black woman in a racist, sexist, and patriarchal society like Brazil’s means being classified, marginalized, and treated like a subaltern merely because of the image your body conveys.

With this in mind, I would like to return to the epigraph above and the words of Grada Kilomba, which are applicable to the legal sphere. The Black woman affirms her gender and race identities as a matter of survival. This is because, as an object of intersecting forms of oppression based on these two elements of identity, she needs to underscore them and render them more visible in her struggle to attain her rights as a Black woman. As Kilomba forcefully concludes, as neither a White woman nor a man, the Black woman plays the role of the Other’s Other.⁵

The White woman, on the other hand, cites only her female condition, the origin of her subjugation, without any need to invoke her race, since it does not leave her disadvantaged but rather privileged. The White man – detainer of all privileges – refers to himself as a person. As the prototype of the legal subject, he embodies personhood itself, no need for identity agendas, since he himself defines universal human rights – what they are, for whom they are conceived, and to whom they will be granted.

Continuing with this line of thinking, we must also contemplate intersections of gender, race, and class within the terrain of law, as factors that have historically overlapped to potentialize vulnerabilities. It is not a matter of ranking oppressions or prioritizing certain identity categories, but of recognizing that they interrelate and intersect,⁶ hence reinforcing unequal access to rights, goods, and status, depending on how power utilizes these identities.⁷

The inarguable, but as yet invisibilized, underrepresentation of Black women within the Brazilian justice system is a factor that must be recognized and debated so that these institutions are compelled to assume their responsibility for the deconstruction of the racism/sexism entrenched within their structures. This is not some inconsequential, baseless pleading of a personal cause. As I will explore in this text, the inclusion of Black women is indispensable to opening the justice system and its institutions to diversity and, consequently, to the epistemological perspectives necessary for building Justice with gender and race equity.

When we talk about the representation of Justice, most people envision the Greek goddess Themis, a mythological White female who stands with her eyes covered, sword in one hand and scales in the other. Personally, I envisage an amalgamation of Dikê⁸ and Oyá.⁹ Dark-skinned and crowned with a head of tightly curled hair, the Goddess/Orixá of Justice does not wear a blindfold when she judges. To the contrary, she keeps her eyes open so she will not fail to see the oppression, inequality, and injustice that it is her mission to correct. By perceiving the surrounding world, Justice can rebalance factual relations to achieve equity, symbolized by the scales she bears in one hand. It is only by seeing through attentive, empathetic eyes that the Goddess/Orixá of Justice can brandish her sword and open the way within the justice system for equality of gender and race (and other forms of equality as well).

“They planned to kill us, but we planned not to die.” -- Conceição Evaristo¹⁰

2 Black Women at a Historically Established Intersectional Crossroads

In racist, sexist, misogynist societies, race and gender largely determine who is authorized to live and who is destined to die. From this standpoint, being a Black woman in Brazil means being subjected to a necropolitics that renews and replenishes itself daily, either excluding or exterminating bodies deemed disposable.¹¹

If we are to understand how Black women came to be consigned to the base of the social pyramid but pushed to the top of violence and incarceration rates, we must reflect hard and deep on the colonialist, sexist structures that have historically sustained the privileges of the same social/racial groups. The singular way in which the trans-Atlantic slave system combined race and gender in the subjugation of Black female bodies has left Black women imprisoned at an intersectional crossroads.

Throughout the history of Brazil, race and gender have always overlapped in the subjugation of Black women and reflect Black women’s current situation of vulnerability in Brazilian society. To understand this point, we must take a brief digression back to the period of slavery.

While the institute of slavery traces its roots far into the past – as far as classical antiquity, when it was imposed as a consequence of indebtedness or war – trans-Atlantic slavery was historically unprecedented in how it blended two features: racialization and commercialization.

In effect, race was the determinant element in the kidnapping and enslavement of Black people during the trans-Atlantic diaspora to the Americas. Treated as money-making merchandise, these enslaved people were reified and commercialized on a large scale. In this regard, there was no difference between men and women, with the process of enslavement founded on race, independent of gender.

Likewise grounded in race, enslaved Black women were subjected to forced labor, like backbreaking field work. In addition to suffering abject sexual violence and other forms of gender aggression, Black women, like enslaved Black men, were also submitted to such mechanisms of torture and corporal punishment as the lash, collars, and masks. In other words, under these circumstances, race equalized men and women under the yoke of colonialist slavery.

However, in addition to their subalternization based on race, enslaved Black women faced myriad forms of violence associated with the fact that they were women. Put on the auction block, enslaved Black women were evaluated and priced with the intent of using their bodies not only for forced labor but also for sex and reproduction. The Black women who were deemed strongest and most fertile were set apart as reproducers and repeatedly raped, made to endure successive pregnancies and thus lucratively grow the slave herd. Moreover, the slave masters themselves used Black women as sex objects, practicing what has been called colonial rape –largely responsible for the much-celebrated miscegenation of the Brazilian population.

In the subalternization of Black women, gender and race also intersected in the experience of abortion. Black women have always known how to abort because the conditions of enslavement required abortion. Unable to bear the idea that their children would suffer the same brutal experience as they did, or to prevent their children from being murdered by the enslavers, many enslaved women turned to abortion.¹²

Similarly, slave prostitution was a widespread practice in Brazil’s slave-owning society, one that reveals the importance of an intersectional analysis of race and gender. When Black women reached the age of fifteen or so, they were often prostituted by their mistresses, who would dress them up, often lavishly, better to ensure their bodies/merchandise would reap more profit.¹³

We should also remember the psychological violence wrought by Black women’s coerced abandonment of their own children, as they were forced to leave their newborns unprotected while they served as wet nurses, breastfeeding the mistress’s children, a service they were also hired out or sold to other families to perform.¹⁴

Thus we see how, in the history of Brazil, race oppression has always been conjoined with gender oppression against Black women, assigning them to an extremely disadvantaged position in Brazilian society, not only socioeconomically but also as victims of a broad gamut of forms of violence against their bodies.

“I am not free while any woman is unfree, even when her shackles are very different from my own.” -- Audre Lorde¹⁵

3 The Black Woman in Twenty-first Century Brazil

The historical colonial process continues to find clear expression in the multiple forms of violence to which Black women are subjected in Brazilian society today. Certain studies demonstrate this reality.

According to the latest census (2010) by the Brazilian Institute of Geography and Statistics (IBGE),¹⁶ 25.5 percent of Brazilians are Black women, that is, about fifty million. In 2009, according to data from the Institute for Applied Economic Research (IPEA), 50 percent of all women in Brazil were Black, while 49.3 percent were White, giving Black women a slight majority.¹⁷

Although Black women represent the largest slice of Brazil’s female population, they do not have the same access to rights and are not as well represented in positions of power as White women. Moreover, Black women face extremely disproportionate rates of incarceration and violence in relation to their populational representation.

The 2015 report on Brazil’s federal domestic violence hotline (Balanço do Ligue 108) shows that Black women made up roughly 60 percent of female victims of domestic violence in Brazil that year. Justice Ministry numbers for the same period indicate that 68.8 percent of the women who were fatal victims of aggression were Black. Black women also accounted for 62.8 percent of maternal deaths, according to Health Ministry data (2012), and for 65.9 percent of obstetric violence victims, according to the academic journal Cadernos de Saúde Pública (2014).¹⁸

In the area of obstetric violence, Black women have notably less access to anesthesia during vaginal childbirth, compared to White women receiving services through Brazil’s national health system (Sistema Único de Saúde, or SUS).¹⁹ This difference cannot be attributed to class alone. If Black women are poorer in Brazil and, therefore, represent the largest SUS clientele, we would expect them to account for greater consumption of anesthesia during vaginal childbirth than the other way around. This disproportionality stems from the entrenched belief – a legacy of slave-based colonialism – that Black women can stand more pain and, therefore, do not need anesthesia.

In terms of deadly violence, the Mapa da Violência report for 2015,²⁰ issued by FLACSO Brazil, evinces the heavy impact of the racial factor: the ten-year period from 2003 to 2013 saw a 54.2 percent rise in the homicide rate among Black women, while 9.8 percent fewer White women died at the hand of violence.

Looking at more recent figures, according to data from the IPEA Atlas da Violência report for 2019,²¹ racial inequality is likewise visible when comparing homicide rates between Black and non-Black women. While the homicide rate for non-Black women increased 4.5 percent from 2007 to 2017, the rate for Black women climbed 29.9 percent. According to the report, the difference is even more striking in absolute numbers: the rise among non-Black women was 1.7 percent compared to 60.5 percent among Black women. Data for the latest available year show 3.2 homicides per 100,000 for non-Black women and 5.6 per 100,000 for Black women. Racial inequality is also apparent in the proportion of Black women victimized by deadly violence: they represented 66 percent of all women murdered in Brazil in 2017.²²

It should be pointed out that Brazil implemented its Maria da Penha Law in 2006, putting in place mechanisms for curtailing domestic and family violence against women and thus helping mitigate various forms of violence against women during the period under question. Yet we must ask why neither Brazilian laws, nor the country’s public security apparatus, nor its justice system are able to respond to Black women’s needs as much as they do to White women’s.

Turning to mass incarceration, according to data from the Justice Ministry’s INFOPEN Mulheres survey for 2018,²³ the incarceration rate for women in Brazil shot up 455 percent over a sixteen-year period (2000-2016), boosting Brazil into third place worldwide, outranked only by the United States and Thailand. Of all women imprisoned in Brazil, 62 percent are Black, which is the same percentage of women who have been deprived of their liberty for alleged drug trafficking.

In the working world, according to the latest IBGE census (2010), the average Black man in Brazil earns roughly 52 percent of what a White man does, while Black women bring in only 38.5 percent of the White man’s salary. These figures reflect a persistent, structural socioracial pyramid that positions groups in the following (dis)order, from the top down: White men, White women, Black men, and, at the very bottom, Black women.

In other words, in twenty-first century Brazilian society, even though slavery was abolished more than one hundred thirty-two years ago, Black women are still the prime victims of all types of violence and of necropolitical actions and omissions by the State, signaling the severity with which the intersecting oppressions of race and gender impact Black female bodies.

“In a racist society, it is not enough to be a non-racist. We must be antiracist.” -- Angela Davis²⁴

4 Race and Gender in the Brazilian Justice System

The debate surrounding institutional racism began in the 1960s during the civil rights struggle in the United States. The concept was introduced by Stokely Carmichael and Charles V. Hamilton in their 1967 book Black Power: The Politics of Liberation in America. The authors argued that institutional racism is associated with the active functioning of anti-Black attitudes and practices that are structural in nature and grounded in the idea of Black inferiority, used to justify Black subordination to Whites.²⁵ These practices, which cannot be reduced to individual acts, structure how the White community behaves toward the Black community.

In England, the question of institutional racism entered the legal and political realm when Stephen Lawrence, a Black teenager, was murdered by a White racist group on April 22, 1993. Five years after the crime, with the investigations still dragging on, a public inquiry was opened to assess the London Metropolitan Police’s investigatory procedures; its conclusion was that the police force was institutionally racist. In its final report, the inquiry defined institutional racism as “the collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture or ethnic origin.”²⁶ In Brazil, the notion of institutional racism began gaining footing in 2001, when the Programa de Combate ao Racismo Institucional was created under a partnership with the British government, which had the effect of disseminating the British view of the phenomenon within Brazil.

I would argue, however, that institutional racism is not limited to the mere failure of institutions to offer racially equitable services. In a country where structural racism makes race a determinant factor in power relations, institutions were never shaped with the goal of offering racially equitable services. Therefore, more than representing some kind of failure, institutional racism must be understood as the reproduction, through public and private institutions, of the hierarchization of people according to their race.

If, as already stated, institutions reproduce the hierarchized structure of socioracial relations, we cannot expect institutional actions, notedly on the part of the justice system, to have an antiracist or racially egalitarian impact. The Brazilian criminal justice system, according to Sérgio Adorno, repeats this pattern of stigmatizing Black people. In his examination of criminal proceedings involving arrests in flagrante delicto for the crime of aggravated theft, the author found that a higher percentage of Black people were eventually charged (58.1 percent) than Whites (46 percent). Furthermore, a larger share of White defendants were allowed to face charges while out on bail (27 percent) than were Black defendants (15.5 percent).²⁷

A government report on incarceration for 2015²⁸ showed that Brazil’s prison population rose 74 percent between 2005 and 2012 – from 296,919 people deprived of their freedom nationwide to 515,482. In terms of racial composition, 58.4 percent of Brazil’s prison population comprised Blacks in 2005, a percentage that had reached 60.8 percent by 2012. As the same study tells us, 191 White persons above the age of eighteen were incarcerated per 100,000 White inhabitants, compared to 292 Black persons, in 2012; in other words, proportionately speaking, 1.5 times more Blacks were incarcerated than whites in 2012.

A study of custody hearings held from January to April 2016 in the state of Rio de Janeiro, released by the state Public Defender’s Office, found that White defendants who were arrested in flagrante delicto had a 32 percent higher chance of being released than Blacks in the same situation.²⁹ Similarly, in September 2019 the Public Defender’s Office for the State of Bahia released a report for the district of Salvador (2015-2018),³⁰ according to which around 99 percent of those arrested in flagrante delicto in the city of Salvador were poor Blacks.

Throughout the history of law, wars on drugs, or anti-drug policies, have been major drivers in the persecution and criminalization of poor Blacks. Readily apparent in justice system rulings, racial profiling is facilitated in Brazil by the lack of a clear-cut legal differentiation between drug user and drug dealer. In practice, it thus falls on law enforcement and the courts to decide whether an illegal substance was intended for personal use or for sale, regardless of the quantity apprehended. Since this leaves ample opportunity to apply drug laws selectively, Black men are routinely categorized as dealers, even when in possession of only a tiny amount.

A survey conducted in the city of São Paulo by the news magazine Revista Exame³¹ found that Black men represent the majority of those sentenced for drug trafficking, even when caught with a smaller quantity of drugs. According to the report, in 83.7 percent of drug trafficking cases, the only witnesses were the arresting police officers – in racial terms, 85.3 percent in the case of Black defendants and 81 percent in the case of white. In terms of drug quantity, White defendants were caught with an average of 85 grams of marijuana, 27 grams of cocaine, and 10.1 grams of crack, compared to lower averages for Black defendants: 65 grams of marijuana, 22 grams of cocaine, and 9.5 grams of crack. In cases involving only one substance, Blacks were sentenced more often, even when in possession of a smaller amount. Among defendants accused of marijuana possession, 71 percent of Blacks were sentenced for carrying an average of 145 grams, while the sentencing rate was 64 percent among Whites, who possessed an average of 1.14 kilograms.

Conversely, various roadblocks are found in the reporting, investigation, prosecution, and judgement of crimes of racism, evincing the justice system’s resistance to enforcing norms intended to combat racism, especially the constitutional mandates that are part of Brazil’s legal framework, and this contributes to naturalizing racially discriminatory conduct and ensuring that it can be practiced with impunity. Within this context, it is undeniable that normative instruments do not suffice to address racism and protect one’s right to racial nondiscrimination if law enforcement officers and the courts themselves consciously or unconsciously reproduce Brazil’s reigning standards of racial hierarchization.

In this regard, when the Inter-American Commission on Human Rights decided the merits of the Simone Diniz case in 2006, it called attention to the Brazilian justice system’s failure to punish race crimes. This was the first time Brazil had ever been charged in an international forum for human rights violation in the arena of racial discrimination. Decision no. 12.001, reached on October 21 of that year,³² marked the international community’s recognition of institutional racism inside the Brazilian judicial system. The report lays bare the legal and social pertinence of race by framing a case of racial discrimination of an eminently private nature within an analysis of the structural, systemic racism that is part of what takes place inside Brazil’s legal institutions.

Actual reality tells us that the Brazilian justice system is structurally and operationally intransigent when it comes to the practical application of legal, normative antiracist measures and that it constitutes yet another space that reproduces institutional racism by behaving in a racially conditioned manner.

A study by the research group Laeser (Laboratório de Análises Econômicas, Históricas, Sociais e Estatísticas das Relações Raciais) found that victims of racism lost 57.7 percent of their cases on appeal, referring to data from January 1, 2005, to December 31, 2006.³³

According to the 2019 Anuário de Segurança Pública, an annual report released by the Brazilian Public Security Forum, Black people ranked first as victims of feminicide and killings by police. The report states that 75.4 percent of victims of police killings in Brazil were Black, from 2017 to 2018. At the age of 21 – the age when men are most likely to be victims of homicide in Brazil – young Black men are 147 percent likelier to be murdered than Whites, those of Asian descent, or Indigenous peoples.³⁴

The data presented earlier on Black women in twenty-first-century Brazil indicate that the justice system’s position on the race issue is repeated in the area of gender. Not only are Black women the indirect targets of government necropolitics, through actions that victimize their Black sons and partners; they themselves are also the direct objects of State oppression, through mass incarceration or as victims of higher rates of femicide and other forms of violence against women – not to mention their rates of subemployment and the fact that they earn the lowest average monthly salaries on the labor market.

We must recognize that the law itself was built on colonial epistemological and institutional foundations and that hegemonic groups have historically used the law to ensure their domination of subalternized groups. So long as the justice system remains structurally colonial, the law will continue to serve as an instrument for preserving the status quo and enforcing only a partial vision of equality and freedom, one that depends on race and gender.

Since the justice system is incapable of recognizing the intersectional vicissitudes of gender and race as conditioning elements of Black women’s access to fundamental rights, the achievement of justice remains fettered by an epistemological, hermeneutical perspective that privileges White men, the true beneficiaries of so-called universal rights. These structures must, therefore, undergo a process of democratic re-orientation with the effective participation of Black women (and certainly of other vulnerable ethnic and racial groups) as part of a legal-political dialogue capable of unleashing the law’s emancipatory power for all people.

“Ain’t I a woman?”³⁵ -- Sojourner Truth

5 Black Women in the Brazilian Justice System and the Absence of Data: What Isn’t Measured Isn’t Seen, and What Is Invisible Has No Rights

How many Black women hold a post in Brazil’s justice system? Is the number of Black women serving in the justice system disproportionate to their numbers in the Brazilian population? The precise answers to these questions are unknown although, empirically, there is a conspicuous near-total absence of Black women from these positions.

The non-existence of data that could answer these questions is symptomatic of how blind these institutions are to the gender vulnerabilities associated with race vulnerabilities. Without a diagnosis of the representativity of this social category within the justice system, it is impossible to recognize the existence of a problem that needs solving. In effect, that which is not measured becomes – often quite conveniently – invisible to the eyes of Justice.

Some institutional surveys in Brazil have recently begun including the category of race, particularly after racial quotas were adopted as part of civil qualifying exams. But although justice system institutions have no trouble indicating the number of women on their staffs, we observe generalized omission when it comes to intersecting information on race and gender. In terms of race alone, data indicate that the makeup of institutions within the justice system is one element of the evident reproduction of institutional racism.

In 2012, the Public Prosecutor’s Office for Labor (Ministério Público do Trabalho, or MPT), through its National Coordinating Board for the Promotion of Equal Opportunity and the Elimination of Employment Discrimination, released a statistical survey based on three categories – color/race, gender, and disability – with the goal of determining the composition of MPT personnel.³⁶ Findings were that 67.90 percent of active employees were White and 24.71 percent were Black. An even more marked underrepresentation of the Black population was noted among justice officials alone (i.e., judges, prosecutors, and attorneys), with 77.35 percent of MPT labor attorneys declaring themselves to be White and only 19.16 percent to be Black.

The results of the 2014 census conducted by the National Council of Justice (Conselho Nacional de Justiça) are also illustrative of institutional racism within Brazil’s justice system.³⁷ According to the final report, which encompasses justice branch personnel countrywide at both federal and state levels, 80.9 percent of all magistrates entering the career from 2012 to 2013 were White, while only 19.1 percent were Black. Of the latter, 17.1 percent were pardo (brown) and 2.0 percent, preto (Black). This was the highest number of Blacks ever to join the profession, compared to previous periods: 16.5 percent (1955-1981), 15.8 percent (1982-1991), 14.9 percent (1992-2001), and 15.5 percent (2002-2011).

The São Paulo State Public Prosecutor’s Office, through its Work Group on Racial Equality, released a statistical survey on the racial makeup of its personnel in 2015.³⁸ Of the 1,606 justice officials who replied to the racial census (i.e., 82 percent of all), 93 percent declared themselves to be White, while only 4 percent said they were Black. The report also pointed out that 35 percent of São Paulo’s population is Black.

A broader study, entitled “Public Prosecutor’s Office: Guardian of Brazilian Democracy?” (in Port.) published in 2016 by the Center for Studies on Public Security and Citizenship (Centro de Estudos de Segurança e Cidadania, or CESeC),³⁹ found that most justice officials with Brazil’s Public Prosecutor’s Office are White (76 percent) men (70 percent) from upper social classes who, according to the study, wield influence in prioritizing certain agency duties over others.

Released in March 2019, the Censo Jurídico 2018⁴⁰ – a survey by the Center for the Study of Labor Relations and Inequality, in partnership with the Legal Alliance for Racial Equality and the Getúlio Vargas Foundation Law School in São Paulo – found that Black attorneys account for fewer than one percent of legal staff at Brazil’s major law offices, signaling the absence of racial diversity at private law firms.

Studies on the presence of women within the Brazilian justice system portray persistent gender inequality, although racial exclusion is even more significant. We can conclude that, if White women face huge obstacles to career ascension and promotion to management positions, these questions are essentially irrelevant for Black persons, since they cannot even get into these institutions.

In 2018, the National Council of the Public Prosecutor’s Office (Conselho Nacional do Ministério Público), through its Strategic Planning Commission (Comissão de Planejamento Estratégico), released the study “Gender Scenarios” (in Port.).⁴¹ Based on the hypothesis that there is a large discrepancy between men and women at higher management levels of the Public Prosecutor’s Office, the report was intended to serve as an instrument for fostering institutional debate and developing strategies to address any detected inequalities. Results revealed a scenario where women are underrepresented in positions of political power and decision making. According to the data, the four branches of the Federal Public Prosecutor’s Office and twenty-six State Public Prosecutor’s Offices have 13,011 justice officials, 39 percent of which are women and 61 percent, men. Further according to the study, since enactment of the Federal Constitution of 1988, 73 women have served terms as attorneys-general compared to 413 men, meaning that only 15 percent of these leadership positions have gone to women. During the same period, 105 women held posts as magistrates-general compared to 363 men, that is, 22 percent women to 78 percent men. In the posts of head of office, secretary-general, and assessor (all positions of trust), the study detected a tendency to appoint more men than women (76 percent to 24 percent, 70 percent to 30 percent, and 70 percent to 30 percent, respectively). Further according to this study, the National Council itself reflects this underrepresentation of women; since opening in 2005, 11 women (11 percent) and 87 men (89 percent) have held office at the agency. Thus, while substantial progress has been made in increasing the number of women within the institution, the same cannot be said about management-level positions – a status quo not exclusive to the Public Prosecutor’s Office but extending to other institutions within the justice system as well.

A recent survey, conducted in February 2020 by the Inspector General’s Office of Labor Justice (Corregedoria-Geral da Justiça do Trabalho),⁴² sketches a profile of the distribution of posts by gender at all levels of Labor Justice which demonstrates a trend toward the equitable representation of men and women. The number of female judges in labor courts of first instance is already higher than the number of male judges, that is, 50.4 percent to 49.6 percent. However, in Regional Labor Courts at the appellate level, there are still more male judges (58.7 percent) than female (41.3 percent).

A poll published by the news daily Folha de São Paulo⁴³ on March 1, 2020, indicates clear gender inequality in state justice courts. According to the survey, women represent 37.5 percent of all state magistrates. At the appellate level, however, the proportion drops to 20 percent. In the state of São Paulo, only 31 of the 360 appellate court judges are women, representing a mere 9 percent of the total. In six other states, the percentage of women judges presiding over courts of appeals is below 10 percent.

Looking at the presence of Black women, we note that while justice system institutions have more recently – and tardily – begun endeavoring to diagnose gender inequality in staffing, its intersection with race is still ignored. The only exception to date is the latest socio-demographic survey of Brazilian magistrates (Perfil Sociodemográfico dos Magistrados Brasileiros),⁴⁴released by the National Council of Justice in September 2018. This particular information was included at the specific request of the Association of Federal Judges of Brazil (Associação de Juízes Federais do Brasil, or AJUFE), which had held a seminar featuring a panel (of which I was a participant) to discuss the infinitesimal number of Black women in the justice system, a panel that ultimately decried the lack of available data. Information on the distribution of magistrates by color or race according to gender shows that Black women represent 19 percent of the Labor Justice, 16 percent of the State Justice, 12 percent of the Federal Justice, and 26 percent in other segments of the judicial branch. Overall, this survey provides a glimpse of the profile of the Brazilian magistrate: male, White, and Christian.

In summary, when it comes to collecting data on the profile of people working in the Brazilian justice system, even those institutions that have somehow sought to include information on the numbers of women and/or Blacks on their staffs have failed to cross-reference data on race and gender, invisibilizing the identity category of Black women in these spaces. The only exception, mentioned above, confirms the paltry, disproportional presence of Black women in the justice system, when compared to their representativity in the Brazilian population.

In general lines, this erasing of Black women within the justice system impedes any formal recognition of their underrepresentation, stemming precisely from the intersecting vulnerabilities of race and gender, and this, consequently, hampers the development of initiatives and programs aimed at this group.

“If my cup won’t hold but a pint, and yours holds a quart, wouldn’t you be mean not to let me have my little half measure full?” -- Sojouner Truth

6 Being a Black Woman in the Brazilian Justice System: The Exception that Confirms the Rule

If I had to sum it up in a few words, I would say that being a Black woman in the Brazilian justice system means being the exception that confirms the rule about the absence of Black women in spaces of power and decision making. But these few words only hint at a much more complex problem, one faced daily by the few Black women present in these institutions and one that reveals certain aspects of Brazilian-style structural racism.

Being a Black woman in the justice system means not being recognized as someone who can hold the job she does or be a member of her profession.

As a public prosecutor for over fifteen years, I have seen my position within the institution questioned on countless occasions. I have often observed people’s perplexity – from justice officials with the Public Prosecutor’s Office itself to attorneys and other professionals within the justice system to ordinary citizens – when they encounter my Black/female body in this power space. I have had to answer the question “Where’s the public prosecutor?” innumerous times. No matter how often it happens, I have never grown accustomed to being addressed as an intern, being steered away from the private elevator, or even having my ability to serve as public prosecutor questioned.

Among so many lived experiences, one of them touched me quite deeply. It was when I had an appointment at my office with the mother of a young, incarcerated Black man, a mother who wanted information about her son’s sentencing process. I invited her to sit down at my desk and offered her some water and coffee, true to my habit with everyone I see in my office. But even before I could approach the subject that had brought her to the Public Prosecutor’s Office, she barked out at me: “Are you the one who’s going to see me?” “What about the public prosecutor?” Controlling my indignation, I simply replied: “I am the public prosecutor who is going to see you.” Not satisfied, she said she had expected “something else.” When asked what that was, she said she had expected a “senhora.” I retorted, somewhat ironically, that she was sitting before a “senhora and mother of a family.”

The episode got me thinking. After all, “what” or “who” was that woman, Black like me, expecting to find when she made her appointment with an attorney from the Public Prosecutor’s Office? And why were her expectations frustrated when she saw me? Because she could never imagine someone like her occupying that space.

The way European coloniality⁴⁵ shaped – and still shapes – Brazilian reality has not only been by dominating peoples and selectively appropriating their knowledge; it has also spread its roots throughout the educational system. Blacks are markedly absent from textbooks at all educational levels, except when featured as enslaved people or when heavily stereotyped or painted as inferior.

On this topic, Dr. Ana Célia da Silva studied how the representation of Blacks in children’s textbooks instills Black children with a harmful feeling of self-rejection.⁴⁶ Seeing themselves portrayed in these books in a biased, subalternized way, the children go on to experience self-negation throughout their lives, rejecting themselves and, similarly, those who are like them.

In short, the woman who came to my office and refused to recognize me as a public prosecutor did so partly because of her own feelings of self-rejection. Of course, she was not the only one. It was only after serving at my job for over twelve years that I felt my presence was recognized and accepted, albeit with surprise, and nowadays usually positively. Today, as a public prosecutor who actively combats racism and religious intolerance, I receive many people who have been victimized by racism and who are startled by my highly unusual presence within the Public Prosecutor’s Office – people who go on to express their gratitude for being seen by a Black woman who will at least be empathetic to the racial discrimination cases brought before the Office.

Being a Black woman in the justice system means not being understood in your mission to combat institutional racism in the Brazilian justice system.

As observed earlier, the makeup of the Brazilian justice system does not echo the diversity of Brazil’s population, especially in terms of the number of Blacks pursuing law careers. There is a glaring disproportionality between the overall representation of Blacks in the population – 56 percent, according to official IBGE data – and as employees of the justice system. This near exclusive Whiteness in the composition of the Brazilian justice system finds reflection in its reproduction of institutional racism, as recognized even by the Inter-American Commission of Human Rights.

Addressing this topic among justice officials is an arduous task. Blindness to, and consequent lack of empathy for, the race issue prompts those within the Brazilian justice system to disregard factors that are extremely relevant when providing a service not limited to preserving the status quo.

From this standpoint, taking up the task of uncovering the eyes of Justice so they see the intersectionalities of gender and race means facing the risk of not being understood and maybe even transformed from victim into tormentor. Ruby Hamad, in her piece “How White Women Use Strategic Tears to Silence Women of Colour,”⁴⁷ illustrates how white women confuse antiracist discourse with personal attack and use strategic tears to silence Black women. Her article brought to mind moments when I was addressing institutional racism/sexism in the justice system and witnessed similar reactions on the part of White colleagues. Incapable of developing empathy and recognizing the existence of racism inside the institution, they took offense, as if I were accusing them individually of practicing racism. They managed to derail the conversation, turning my antiracist discourse into an accusation, the victim becoming the tormentor. It was almost as if they were demanding that I tone it down, soften my speech, so it would be palatable to White people or mollify them.

But how can you tone down your words when you are talking about a system of oppression as harsh and deadly as racism in Brazilian society? How can you continue to build bridges rather than walls? This is especially the case in places where, given the near-total absence of Black people, it is crucial to work to convert White people into antiracists, or risk having to remain on a futile, solitary pilgrimage?

Being a Black woman in the justice system means fulfilling the lonely mission of combatting institutional racism and sexism.

Given the blatant absence of Blacks within the Brazilian justice system, exposing the effects of institutional racism/sexism and demonstrating the importance of confronting it so that these institutions are able to promote egalitarian justice proves a lonely task, one that requires patience and persistence.

One swallow does indeed a summer make! Affirming the opposite would discourage individual efforts to combat hegemonic interests and achieve collective victories. “Our footsteps come from way back,”⁴⁸ and they have often been solitary footsteps that joined with so many others, blazing trails in our existence/resistance as Black women.

In the first half of 2019, the National Council of the Public Prosecutor’s Office, in partnership with the Delegation of the European Union to Brazil and state offices of the Attorney-General of Justice, held Regional Conferences of State Prosecutors in each of Brazil’s five regions (North, Northeast, Central-West, Southeast, and South). The meetings were part of the project “European Union-Brazil Dialogues: Gender Equality in the Justice System/Federal Prosecution Service.” The partnership was intended to encourage the implementation of new practices to strengthen the presence of women and women leaders in Brazil’s Public Prosecutor’s Office as part of the drive to achieve the Sustainable Development Goals in the realm of gender, laid out in the United Nations’ 2030 Agenda for Sustainable Development. Based on subjective analyses, each meeting approved statements that included proposals for institutional initiatives to foster gender equality.

The first conference took place on February 22-23, 2019, in Manaus, bringing together women prosecutors and attorneys from the North. The second, representing the Northeast, was held in Salvador on March 29-30, and I was invited to be a panelist.

As usual, I was the only Black woman on the panel and one of the few among the attendees. Before I spoke, none of the presenters had touched on the race issue. Every discussion had been limited to debating gender inequality and the role of women in Brazil’s Public Prosecutor’s Office. But what women were we talking about? What universal women are these who become incapable of seeing the shackles that oppress other women?⁴⁹

I began by pointing out that any gender equity agenda coming out of the Regional Conferences would be incomplete if it failed to encompass the race issue. Using research data and concrete cases, I showed how institutional blindness toward the intersectionality of gender and race has impacted the service we provide the public, neglecting women who suffer greater vulnerability and who, therefore, should never be forgotten in our work: Black women. Beyond the serious gender inequality experienced by women in the Public Prosecutor’s Office,⁵⁰ something amply reiterated throughout the conference, I explained how I have endured so many other discriminatory experiences, not even mentioned by my colleagues, simply because I am a Black woman.

This was also an opportunity to alert my colleagues to the fact that White women’s non-recognition of racial oppression means they will necessarily reproduce this type of oppression against Black women, banishing their colleagues from discussions and gender equity initiatives.⁵¹ I listed numerous other vulnerabilities that are roundly ignored by men and women jurists alike and that impact certain social groups, like the LGBT community, Brazil’s Northeasterners, the poor, people with disabilities, and so on.

While I did not expect my colleagues to understand or be empathetic, I went on to argue that the presence of Black women in the justice system is important to advancing a much-needed epistemological revolution. As I closed my talk, a few seconds of silence fell – interrupted, to my surprise, by an outpouring of emotion. Tears were shed, but not as a strategy to silence me. The subject matter was subsequently assigned to the agenda, with the topic “gender and race inequality” incorporated into the project and featured in the announcement for the succeeding three conferences. Moreover, various statements approved at the end of each gathering included proposals for combatting racism and promoting racial equality, associated with gender equality.

I am not telling this story to romanticize the solitary action of Black women in the deconstruction of institutional racism/sexism. This process can be – and has been for many Black women – literally sickening. Survival strategies must be adopted if one is to continue existing/resisting in these spaces. I would like to mention just two of these.

First, the strategy of constraint. Let me explain: institutions must be constrained to assume their responsibility in addressing institutional racism/sexism. It is among the duties of justice system institutions to promote equality and defend the democratic rule of law, pursuant to constitutional mandates. Not only is it an unbearable burden to take on these agendas solely as a personal obligation – doing so might not even achieve the desired ends. And it could possibly have two negative consequences as well: it might serve as an excuse for the institution to persist in not fulfilling its role or in addressing the problem only superficially; second, any pertinent initiative might fall by the wayside when the individual behind it eventually leaves the institution (even if through retirement).

In the second place, I would like to call attention to the strategy of internal and external linkages. Black women – those who have effectively become Black⁵² – are true institutional activists who solitarily serve as spearheads, as countercurrents, in the institutions of which they are part. This is why these linkages are so important within the institution – with other Black people, if there are any, but also with antiracists, inside and outside the institution, and especially with social movements, organizations within civil society, universities, and other government institutions. In addition to legitimizing and reinforcing actions, such connections enable joint initiatives, shifting the focus away from individual ones (often confused with the defense of self-interest) and evading retaliations.

Being a Black woman in the justice system means, lastly, being in a state of constant construction, pursuing strategies for confronting racism/ sexism and promoting racial and gender equality.

“I am no longer accepting the things I cannot change…. I’m changing the things I cannot accept.” -- Angela Davis

7 By Black Women’s Hands: Building Equitable Justice

From everything I have laid out here, the makeup of the institutions comprising Brazil’s justice system clearly has a direct impact on the services provided to the public. The underrepresentation of Black women, one of the most vulnerabilized categories in Brazilian society, engenders a single, White-centric, androcentric outlook oblivious to race and gender issues, in final analysis often making the achievement of justice a privilege of White men.

Chimamanda Adichie’s warning about “the danger of a single story”⁵³ also applies to building justice. Imposing a single view or interpretation of history influences jurists’ understanding of the very notion of justice, constructed along racist, sexist lines.

If “every point of view is the view of a point,”⁵⁴ the Brazilian justice system’s point of view is, generally speaking, that of the White man, incapable of seeing beyond his privilege. From his ivory tower of social privilege, the arbiter is confined to a narrow view of the world, too shortsighted to see the oppression borne by vulnerabilized groups.

In other words, building a sense of justice depends on the arbiter. The social place of the Other must be understood and one’s own social place transcended if equity is to be achieved within the justice system. In this sense, the more that diversity is absorbed by the justice system, the greater its ability to develop plural legal hermeneutics appropriate to our social reality.

Changing this paradigm of justice will entail the deconstruction of institutional racism/sexism, and this is a process where the action of the few Black women within the justice system has proven indispensable. The presence of Black women not only makes spaces of power more equitable in their composition; it also strengthens the democratic legitimacy of these institutions, enabling qualitative changes in their patterns of response to those they serve as gender and race perspectives are incorporated into the decision-making process.

Black women jurists find themselves in an epistemologically advantageous position, essential to eradicating the exclusivist logic of Whiteness in the justice system and subverting the single story by affording a unique point of view that opens the horizons for achieving a more equitable justice.⁵⁵

Black women, who occupy a social place situated at the intersectional crossroads of gender and race oppressions,⁵⁶ enjoy a broadened interpretive outlook thanks to their two-fold lived experience – that is, they are capable of understanding reality from at least two points of view, or two perspectives, that of gender and that of race. Theirs is not just any perspective on gender and race, but rather a view from the margins, grounded in the vulnerabilities they suffer for being women and for being Black.

While occupying this intersectional place puts Black women at multiple disadvantages, it also allows them to have an empathetic, understanding attitude toward the vulnerabilities of the Other. It is no accident, for example, that Black women’s movements have put issues on their agendas that are not limited to gender and race but traverse other forms of oppression, like religious intolerance and LGBT phobia.

Despite the current lack of data and the fact that discussions about Black women’s presence and role in the Brazilian justice system have only just begun, the few Black women jurists now holding positions within the system have challenged this excluding logic from the inside, but without overlooking the actions likewise needed from the outside in. To undermine its White-centric, androcentric structure, the justice system must be occupied and questioned from within, impelling the adoption of programs to confront institutional racism/sexism.

But this counter-hegemonic effort must come hand in hand with initiatives that bring more Black women into the justice system so forces can be joined in the effort to promote a true paradigm shift.

The Brazilian justice system is already seeing an epistemological transformation produced by Black women, not only through isolated actions but also through collective initiatives, such as proposals to apply racial quotas when admitting new members; calls for parity or guaranteed minimum representation on panels, internal bodies, qualifying exam committees, and so on; the promotion of debates about institutional racism, gender inequality, and Black feminism, held both inside the system and with social movements; and the demand for ethnic-racial censuses of these institutions, intersected with gender.

Among many such initiatives, the group Aboyomi Black Jurists (Aboyomi Juristas Negras) merits special mention for its innovative, fruitful endeavor.⁵⁷ The primary mission of this not-for-profit collective of Afro-feminist attorneys is to prepare Black women (and men) to enter the justice system as judges, attorneys, prosecutors, police precinct chiefs (delegados), and in other strategic positions of power. The project has successfully helped Black women jurists pass civil qualifying exams, thus increasing the number of Black women in the Brazilian justice system who are conscious of their revolutionary role.

To return to my initial thoughts on the imagetic representation of Justice, I would like to close by affirming that it will be by the hands of Black women – the incarnation of the Goddess/Orixá of Justice – that the foundations will be laid for building equitable justice.