Historically, the crime of adultery used to be applied more severely when committed by a woman than when committed by a man (ICIZUKA, ABDALLAH, 2007, p. 214).
The Philippine Ordinances (1603), laws in force in Brazil during colonial times, authorized a husband to kill his adulterous wife and her lover, except in cases where the husband was a peasant and the lover was a nobleman of high social status. The same did not apply if the wife discovered the infidelity. The first Brazilian Penal Code, the Imperial Criminal Code of 1830, removed this rule from the Philippine Ordinances.
Subsequently, the 1890 Penal Code (Penal Code of the Republic) provided that homicide committed under an emotional state of total disturbance of the senses and intelligence would no longer be a crime. The example used at the time to illustrate this type of state was the discovery of adultery. of the woman, which would trigger such an intense emotional reaction that the husband could not be held responsible if he killed his wife (ELUF, 2007, p. 115).
Still regarding the Brazilian Penal Code of 1890, its article 279 punished an adulterous woman with imprisonment of one to three years, and the same penalty would only apply to a man if he supported a lover at the same time. With the Penal Code of 1940 (our current code), we have the repeal of the exclusion of illegality regarding "disturbance of the senses and intelligence," provided for in the Code of 1890 (ELUF, 2007, p. 115). However, the idea that a betrayed man had the right to kill his wife still persisted among the population (ELUF, 2007, p. 115).
Still regarding our current code, we have Article 240, which established a prison sentence of 15 days to 6 months for the adulterous spouse. Criminal action could only be brought by the offended spouse within one month of becoming aware of the act. The right to file a criminal action would be lost if the offended spouse consented to the adultery or forgave it, either expressly or tacitly.
On March 28, 2005, Law No. 11,106 repealed Article 240 of the Brazilian Penal Code, effectively decriminalizing adultery in Brazil. Prior to this, Article 240 had already lost its validity, as it was rarely used.
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REFERENCES
BRAZIL. Criminal Code of the Empire of Brazil, December 16, 1830. Available at: < http://www.planalto.gov.br/ccivil_03/leis/lim/lim-16-12-1830.htm >. Accessed on: March 29, 2021.
BRAZIL. Decree-Law No. 2,848 of December 7, 1940. Penal Code of 1940. Official Gazette of the Federative Republic of Brazil, Brasília, DF, December 31, 1940. Available at .Accessed on: March 29, 2021.
BRAZIL. Law No. 11,106/05, of March 28, 2005. Official Gazette of the Federative Republic of Brazil, Brasília, DF, March 29, 2005. Available at . Accessed on: March 29, 2021.
BRAZIL. Philippine Ordinances, January 11, 1603. Available at: < http://www1.ci.uc.pt/ihti/proj/filipinas/l5p1188.htm >. Accessed on: March 29, 2021.
ELUF, Luiza Nagib. Passion in the dock. 3rd ed. São Paulo: Saraiva, 2007.
ICIZUKA, Atilio de Castro; ABDALLAH, Rhamice Ibrahim Ali Ahmad. The trajectory of the decriminalization of adultery in Brazilian law: an analysis in light of social transformations and legal policy. Electronic Journal of Law and Politics, Itajaí, v.2, n.3, 3rd quarter of 2007. Available at: www.univali.br/direitoepolitica – ISSN 1980-7791. Accessed on: March 29, 2021
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