In Praise of Hymen

    In Praise of Hymen

    By Brazzil Magazine

    Sexual Honor and Republican Law

    At the end of the nineteenth century and through the first three decades of the
    twentieth, Brazilian legal-medical specialists produced a substantial literature on the
    study of the hymen, counting themselves increasingly among the world’s foremost
    authorities on its morphology. Renowned practitioners such as Nina Rodrigues, Nascimento
    Silva, Agostinho J. de Souza Lima, Miguel Sales, Flamínio Favero, Oscar Freire, and later
    J. P. Porto-Carrero and Afrânio Peixoto published extensive studies aimed at correcting
    the "factual errors in the scientific notions" of not only Brazilian
    professionals, but also European masters.

    European science had not ignored the membrane. Brazilian legal-medical literature is
    replete with citations of nineteenth-century studies by French, Italian, and German
    pioneers who recorded and compared hymens observed in various categories of female bodies:
    prostitutes and virgins, married women and small children, fetuses and corpses, and an
    assortment of animal species. Nonetheless, as late as 1934, when Peixoto published Sexologia
    forense, misconceptions about the relationship between virginity and hymen morphology
    persisted, resulting in tragic misdiagnoses. Peixoto rested his authority on the matter on
    his experience as the founder and first director of the Medical-Legal Service (renamed
    Institute of Legal Medicine in 1922) in Rio de Janeiro, where, he explained, the demand
    for "deflowering examinations" was extremely high. His findings were far more
    conclusive than previous European studies because his sample was vastly greater in size.
    While he had personally observed 2,701 hymens from 1907 to 1915, European masters
    "could count fewer than 300, at the end of their lives, after thirty years as
    medical-investigators."

    At issue was the precision of medical proof of female virginity, or, more frequently,
    its absence, in legal disputes over lost honor. In Brazil and many European nations, this
    evidence was provided by state legal-medical specialists in obligatory examinations of
    female victims of sexual crimes, even when the victim’s prior virginity was supposedly not
    a legal issue, as was the case in most European nations. In Brazil, prior virginity almost
    always was at issue, since deflowering cases such as the one involving Manoel Souza and
    Maria Pereira were overwhelmingly the most common "offense of honor" brought to
    trial. Providing deflowering examinations, as Miguel Sales pointed out in 1928, was one of
    the most important functions of legal-medical work in Rio de Janeiro.

    Peixoto believed that both demography and culture explained his advantage over the
    European experts. "In Brazil, principally in Rio de Janeiro," he posited,
    "the scarcity of women makes them so precious, that upon loss of virginity, they
    promptly demand due repair by marriage." Furthermore, while Northern Europeans were
    indifferent toward the hymen, "Latins have a hymen fetishism: those of the Americas
    kill and die for it. For this reason, any loss of the jewel provokes a prompt complaint…
    up to 500 per year, in Rio alone." Sales, reminding his readers that "we all
    know that the sexual preoccupation predominates in inferior types, in whom it constitutes
    a fixed idea," explained that the preoccupation with the hymen among the "Latin
    nations" was due to multiple factors "such as race, climate, upbringing,
    environment, ignorance and superstition of a great number of illiterates or individuals of
    a very rudimentary moral and mental culture."

    Neither Peixoto nor Sales offered convincing evidence for their explanations of why so
    many lower-class Brazilian women brought cases of lost virginity to the attention of the
    institute of Legal Medicine. While the ratio of females to males increased to near equal
    proportions in Rio de Janeiro by 1940, there was no corresponding decline in reports of
    sexual crime. Furthermore, in her analysis of eighty-eight turn-of-the-century deflowering
    cases, Martha de Abreu Esteves found a variety of complex motivations and conflicts that
    cannot be attributed simply to "Latin" culture or ignorance. In the chapters
    that follow, I argue this was true for the interwar decades as well. On one hand, the
    persistent valorization of female virginity and male sexual aggressiveness, coupled with a
    longstanding tradition of premarital sexual relations, gave men an enormous advantage over
    their female sexual partners before marriage. Some men, like Manoel Souza, preferred to
    maintain this advantage by putting off marriage indefinitely. Given the power inequality
    of such a hierarchical relationship, it is not surprising that women, or their families,
    frequently recruited allies from outside the relationship in cases of conflict. Whereas
    middle or upper-class families might appeal to their male kin and private social networks
    in these kinds of conflicts, working-class daughters, particularly those whose fathers
    were absent, often turned to the local police. On the other hand, we shall see that the
    actual conflicts that led to legal action did not follow any set pattern. Young women
    mobilized resources, including their honor, their virginity, and the criminal justice
    system, in diverse ways to negotiate within a variety of hierarchical relationships. These
    included their relationships with parents and employers as well as with male sexual
    partners.

    Although Sales’s and Peixoto’s observations do not explain why so many working-class
    women brought deflowering cases to the police, they do provide fascinating commentary on
    Brazilian law. Legal-medical specialists’ studies of the hymen, which culminated in
    Peixoto’s campaign against "hymenolatry," demonstrate a remarkable preoccupation
    among legal authorities with sexual honor and female virginity throughout the fifty-year
    reign of the 1890 penal code. Although Sales’s comments about "inferior types"
    were aimed at Rio’s uneducated and racially mixed masses, it seems that "the sexual
    preoccupation" was particularly prominent among the self-defined elite group of
    jurists and legal-medical specialists who were his peers.

    For Sales, Peixoto, and others writing in the 1920s and 1930s, excessive legal concern
    with physiological virginity (as opposed to "moral virginity") and defense of
    sexual honor was retrograde-evidence of Brazil’s backwardness. The "anachronistic
    crime of deflowering," Peixoto argued, "is dying and will die here, as it has
    already in more civilized lands." Peixoto’s work to speed its demise was part of a
    broader movement to redefine sexual honor in the 1920s and 1930s.

    The jurists who had shaped Brazilian law at the outset of the First Republic, however,
    had cited this same concern with sexual honor and virginity as evidence of Brazil’s
    progress. Judge and law professor Francisco Viveiros de Castro expressed the sentiment of
    his turn-of-the-century peers when he proclaimed that "respect for the honor of women
    is not a sentiment innate in man, but rather a conquest of civilization, the victory of
    moral ideas over the brutality of the instincts." According to Esteves, Viveiros de
    Castro’s generation believed that although Brazilian legal codes had progressively
    "conquered civilization" since the colonial period by defending women’s honor
    with increasing precision, the social and demographic transformations brought by the
    abolition of slavery made it necessary to reinvigorate the civilizing campaign. Esteves
    concludes that jurists’ attempts to impose "civilized" gender norms and contain
    popular sexuality within "hygienic" families were part of a wider project of
    social control under the First Republic. State and professional authorities, jurists among
    them, saw the family as the basis of their new nation, a social space that would produce
    an honest, disciplined, and self-sacrificing labor force.

    Despite a broad consensus on the importance of "civilized" family values,
    however, jurists and legislators of the early Republic disagreed about just what these
    values were and how the state should promote them. Their conflicting views on virginity
    and sexual honor reflected broader struggles over the power to shape the nation’s
    political and cultural future. We shall see in chapter 3 that legal debates over how to
    define sexual honor and why it mattered demonstrate that both nationalist discourses and
    the power relations they supported were furiously contested in the decades between the two
    world wars. In the 1920s, a new generation of legal experts joined diverse groups of
    critics to challenge older definitions of sexual honor and family values as well as the
    moral authority of the Republic itself.

    Before turning to post-World War I debates over honor and challenges to the political
    and juridical order of the First Republic, it will be useful to examine the struggle of
    turn-of-the-century jurists to consolidate that order. These men’s attempts to define
    sexual honor and justify their role in defending it highlight many of the political and
    social tensions that accompanied the legitimization of state power after the fall of the
    Empire in 1889. Controversies over the rights and responsibilities of individual
    citizens and legal subjects, the state’s power to regulate public and private life, and
    the role of jurists and other public officials in republican society were all played out
    in debates over sexual honor.

    Jurists under the First Republic no longer dominated national politics to the same
    degree as their predecessors, who had run the imperial bureaucracy. Their authority rested
    increasingly on their claim to professional expertise, and this claim did not go
    uncontested. Viveiros de Castro’s cohort encountered resistance not only among their
    colleagues in the courts, law schools, and legislature, but also among the population they
    sought to perfect, which had developed diverse moral values and sexual norms that did not
    match the ideals of professional elites. Reform-minded jurists also had to justify their
    intervention into the realm of private morality against the claims of family and religious
    authorities. In the process, they found new ways to combine notions of family honor that
    formed the basis of Catholic, patriarchal social organization with concepts of personal
    honor that were more compatible with the values of a secular bourgeoisie. In this regard,
    they built on the work of generations of liberal jurists who preceded them and paved the
    way for more radical thinkers in the decades ahead.

    The transformation of the legal concept of honor was not a linear movement from
    traditional to modern values, although many jurists saw it that way. Nor did Brazilians
    mimic foreign models, although they read the latest debates in European legal scholarship
    and adapted them to their own local concerns. Instead, jurists responded to difficult
    questions of culture and tradition that accompanied the construction of the new Brazilian
    Republic. Although nationalists of left and right agreed in theory that law should reflect
    the historical moral values of a republic’s people, they disagreed about whether Brazil’s
    racially mixed, illiterate population constituted a "people," and about which
    shared cultural traits or moral values deserved to be preserved in law. How could jurists
    attend to both "the customs, traditions, and juridical principles that are the legacy
    of our past" and the "demands of our progress and social evolution"? Should
    jurists try to replace Brazilians’ "propensity toward sensuality and love" with
    "modern" hygienic norms imported from Europe? Should they appropriate the
    control mechanisms of the "traditional Brazilian family," or strengthen private
    control over these mechanisms?

    Turn-of-the-century jurists defined their positions in these conflicts by evaluating
    and applying theoretical principles to their analyses of Brazilian society and to their
    judgments in individual criminal cases. In the process, they developed their own body of
    legal theory, which borrowed eclectically from diverse local and international sources. In
    the 1920s and 1930s, a subsequent generation would draw on their corpus to redefine
    the state’s defense of honor and expand its intervention in the family while attacking
    what they saw as the oligarchical basis of state power and the patriarchal values
    associated with it. The earlier generation, in contrast, worked to reinforce key
    patriarchal traditions in ways that allowed them to sustain both liberal democratic ideals
    and the eugenic and disciplinary goals of the republican state.

    Brazilian Legal Traditions: Liberalism, Classical Law, and the Imperial Penal Code
    of 1830

    Like many of their European counterparts, reform-minded jurists of Brazil’s early
    Republic worked to change a set of legal principles that had been passed down from the
    liberal heyday of the early nineteenth century. For the self-declared "new
    generation" of reform-minded jurists at the turn of the century, the influence of
    "classical law," as they termed Enlightenment legal principles such as
    individual equality before the law, free will, moral responsibility, and proportional
    punishment, had represented an early phase in their nation’s moral progress from backward
    colony to modern nation. This progress had begun with the liberal wave that swept through
    the Brazilian Empire a decade after its independence in 1822, leaving in its wake a new
    criminal justice system.

    Imperial criminal law was grounded in the criminal code of 1830. The code, a
    bold expression of liberal legal philosophy that Europe’s most progressive jurists were
    still struggling to implement in their nations, passed swiftly through the Brazilian
    legislature, replacing the criminal section (book 5) of the Portuguese Philippine
    Ordinances of 1603. As contemporary jurists and politicians complained, corruption and
    problems of judicial procedure made it difficult to guarantee that criminal law would be
    applied effectively. The new code was significant nonetheless, both for the principles it
    laid out and as a symbol of Brazil’s new status as a modern nation. Later jurists, still
    eager to display Brazil’s progress, frequently remarked that the 1830 code was one of the
    most advanced compendiums of its time and had earned Brazil the admiration of prominent
    European legal scholars. As Latin America’s first autonomous penal code, it also
    influenced penal law continent-wide, enhancing Brazil’s leadership efforts in the region.

    The principles that grounded the 1830 criminal code revealed its authors’ inspiration
    in the classical theory that was then taking hold in Europe. Equally important was the
    influence of the French Revolution and the desire of early imperial jurists to eliminate
    what they saw as remnants of the absolutist colonial regime: excessive power over the
    individual by the state, based in the king’s claim to represent divine will; vindictive
    and arbitrary punishment, decided "at the king’s mercy"; differentiation among
    classes of legal subjects that was the basis of aristocratic privilege; and the fusion of
    law and morality. Although a series of royal decrees in the late eighteenth century had
    already ameliorated some of the penal excesses of church and state that liberals
    associated with Portugal’s "dark ages," much of the legislation was unclear or
    even contradictory, and it lacked a coherent set of principles that justified and limited
    state authority. Codification of penal law in 1830 aimed to resolve these problems.
    On the premise that the law should sacrifice individual freedom only to the degree
    necessary for greater social welfare, the new code specified the "common social
    good" served by repression of each "criminal act," defined minimal, fixed
    punishments for each crime, and established equal "criminal responsibility"
    regardless of the identity of the offender, with a few crucial exceptions.

    In practice, jurists could not establish objective distinctions between crime and
    immorality or uphold the equality of legal subjects in criminal law when social norms and
    civil legislation differentiated the rights of individuals by gender and status through
    the institutions of the family and slavery. Moreover, defining these legal categories and
    institutions was so difficult that legislators found it impossible to codify civil law,
    despite the efforts of successive juridical commissions. In the absence of a civil code
    until 1916, books 1-4 of the Philippine Ordinances reigned by default, modified by
    scattered imperial decrees and by the Lei da Boa Razão of 1769, which allowed
    magistrates to use their "good sense" to adapt Roman and canon law to
    contemporary customs, especially in situations not specifically regulated by existing
    laws.

    It is not surprising, then, that the criminal code of 1830 did not completely
    erase the vestiges of medieval morality from criminal law. There were fundamental changes:
    the code eliminated punishment of sins such as sodomy and other "carnal
    conjunctions" between consenting unmarried adults, and it rescinded husbands’ right
    to kill adulterous wives and their lovers, which the Philippine Ordinances had permitted
    unless the lover was "of higher quality" than the husband. Yet although
    nineteenth-century liberals attacked the Philippine Ordinances for authorizing private
    vengeance and patriarchal privileges, they failed to purge the new code of the concepts of
    honor and morality that had provided the logical foundation for such privileges.

    Like most other southern European legal systems, the Philippine Ordinances had
    recognized a variety of offenses to honor alongside different kinds of physical injury or
    material loss; laws punishing these offenses were thus interspersed throughout the civil
    and criminal sections. Some of these offenses were related explicitly to political
    authority and public order: slandering the king or his likeness was a capital offense, for
    instance, and insulting public officials was equivalent to resisting arrest. The Crown
    regulated the markers and rituals of honor (titles, clothing, dueling, and, as we have
    seen, wife-killing), and punished gossip and insults under various circumstances. Offenses
    to women’s sexual honor were more complex: they might offend the moral authority of church
    and state, the inviolability and public reputation of a household, private paternal
    authority, individual integrity, or family patrimony.

    Under the 1830 code, honor was to become an expression of personal virtue rather than
    social precedence or religious morality. Ignoring rituals of absolute power and ascribed
    status, lawmakers created a chapter on crimes against individual honor, including slander,
    libel, and sexual offenses. Yet contrary to two of the code’s fundamental
    principles—individual equality and the separation of crimes against the individual
    from crimes against the state—the laws ranked the seriousness of slander in
    descending order according to whether the victim was a member of the emperor’s family, a
    public official or institution, or a private individual. The laws thus continued to invest
    honor/authority first in the monarch, then his representatives; secondarily, they
    protected the authority that rested on an individual’s public reputation.

    The survival of older concepts of honor and morality was most evident, however, in the
    new code’s definition of female legal subjects. As the code reduced the variety of moral
    offenses and the severity of punishments, it maintained the previous law’s underlying
    principle of gender difference. Thus, murderous husbands could still cite their wives’
    adultery as an attenuating circumstance that could free them from punishment, and
    cuckolded husbands who chose not to murder could have their wives imprisoned. The
    Philippine Ordinances had condemned adulterous wives to death, banishing to Africa only
    husbands who "kept and supported" a concubine. The 1830 code made the same
    distinction, changing the punishment to one to three years’ imprisonment for both
    adulteresses and husbands who kept concubines.

    Punishments for sexual crimes had already been reduced by royal decrees in 1775 and
    1784; they were lowered further in 1830. Rapists received the death penalty under the
    Ordinances; three to twelve years’ imprisonment under the new code (one month to two years
    if the victim were a prostitute). The Ordinances had ordered any man who "slept with
    a willing virgin or honest widow" to marry the victim or provide for her dowry;
    lacking the means to do either, he received banishment to Africa and, if he was a
    plebeian, public lashings. The 1830 code retained the dowry payment for these crimes (now
    "defloration" and "seduction of an honest woman" younger than
    seventeen), along with a blander exile of one to three years outside the offended woman’s
    town. Marriage to the victim freed men of punishment for all sexual offenses after 1830;
    the Ordinances had granted this pardon only in cases of consensual sex, not rape.

    Clearly, sexual crimes represented both a different kind of affront and a different
    kind of honor than insults. The criminal acts were not verbal, but physical; the harm done
    was often not just moral, but material. Victims were exclusively female, and their honor
    was associated with sexual virtue and loyalty to husbands, not individual autonomy and
    public authority. This complexity was reflected in the code’s vague and inconsistent
    definitions of sexual crime victims. Promiscuous women might logically be excluded, yet
    there was a penalty for rape of prostitutes. Seduction and rape laws requiring that the
    victim be "honest" did not stipulate whether the criteria were the same in each
    case; the deflowering law mentioned only the woman’s prior virginity. Thus, although the
    victim’s status was crucial to the definition of the criminal act, the law did not provide
    guidelines for evaluating this status.

    In practice, moral virtue and other markers of honor such as color and class combined
    in ways that made it impossible to establish consistent and objective criteria for
    defending female honor. Could a master be convicted of raping his slave? Could a minor who
    was immodest or who worked and socialized in public complain of deflowering? Sixty years
    later, jurists would complain that the conceptualization of family, honor, and sexuality
    was confusing, the respective crimes illogically organized, and punishment poorly
    justified in the 1830 code. Attempts to correct these errors would provoke contentious
    legal debates that outlived both the Empire and the Republic.

    The incompatibility of slavery and the universal right to freedom provoked even greater
    legal conflicts. Faced with regional and popular insurrections during the liberal 1830s,
    most legislators came to the conclusion that classical legal principles such as equality
    were incompatible with the "cultural level" and "social evolution" of
    Brazil’s population. Brazil’s population, they argued (and many who considered themselves
    liberals agreed), not yet a "people," was unprepared for a social contract and
    would revert to barbarism if not tightly disciplined. Already in 1830, Conservatives used
    arguments of this sort to guarantee slaveholders’ rights to apply private justice through
    corporal punishment and to maintain the death penalty for what they considered the most
    heinous crimes, including slave insurrection. Over the decades that followed, complaining
    that the law’s "excessive liberalism" led to regional revolts, slave
    insubordination, and general social unrest, state and imperial legislators passed a number
    of decrees that modified the original code, differentiating among types of criminals and
    victims, imposing harsher punishments, and strengthening centralized state authority.

    At the same time, the contradiction between the Empire’s slave-based economy and the
    principle of individual liberty that underlay its liberal legal codes resulted in what
    Keila Grinberg describes as "the law of ambiguity" regarding slaves’ civil
    status. Even as the law continued to uphold the property rights of slaveholders over
    slaves, lawyers and magistrates could successfully evoke the liberal concept of universal
    rights to freedom in favor of slaves. This contradiction was apparent to late
    nineteenth-century liberals and abolitionists, who called for the revision of imperial law
    to eliminate the distinctions between slave and free persons and to respond to the new
    needs of a society of "free men."

    Defining the Brazilian Family in Republican Civil Law

    With the abolition of slavery in 1888 and the overthrow of the Empire the following
    year, the need to define citizens, legal subjects, and the relationship between state and
    society gained new urgency. In a climate of vigorous political militancy centered in Rio
    de Janeiro, arguments for citizenship rights for women and men of all classes were widely
    disseminated and debated, appearing in the press, in political rallies, and in the favored
    forum for popular political debates, Carnaval parades. Several radical members of the
    Republican Party, most of whom were urban professionals, supported women’s suffrage, and
    it was debated in the 1891 Constituent Convention.

    The Constitution of 1891 proclaimed a republic of free and equal citizens. As was the
    case in nineteenth-century legislation, however, the Constitution failed to define
    equality and citizenship clearly. The Constitution itself did not mention gender, but
    referred to the Brazilian people with masculine collective pronouns ("all" [todos]
    were equal under the law; "citizens" [cidadãos] could vote).
    Although, as in all Romance languages, the masculine plural in Portuguese can include
    women and men, republican officials interpreted this wording to exclude women. By limiting
    "active" citizenship, which included the rights to vote and hold public office,
    to literate males twenty-one or older, legislators guaranteed continued rule by a
    privileged minority. Along with children, the insane, beggars, illiterates, and Indians
    protected by the state, women became "inactive" citizens, subject to republican
    laws but denied rights to civic participation.

    Proponents of women’s rights also lost important battles over republican civil law. The
    young jurist Clovis Bevilaqua, commissioned in 1899 by then justice Minister
    Epitácio Pessoa to write the republican civil code, produced a document that most
    observers considered a compromise between reformists such as himself and those who fought
    to preserve "Brazilian traditions." The legislature nonetheless passed
    Bevilaqua’s proposal into law only after removing what Bevilaqua considered its firmest
    "liberal dispositions"—those that enhanced the rights of women and
    illegitimate children in the family. While this demonstrated divisions among public
    authorities over the type of family to be defended, it also reinforced the continuing
    political importance of the institution. No one, and certainly not Bevilaqua, doubted that
    the family would remain Brazil’s most important civil institution under the new Republic,
    nor that its "harmony" required maintaining distinctions between the rights of
    women and men.

    Although Bevilaqua and other young reformists agreed with more conservative lawmakers
    that preserving the family justified the suppression of women’s individual liberties, the
    two sides disagreed on the extent of this suppression. Bevilaqua was eager to adapt civil
    law to what he considered the modern family—a family held together by love and mutual
    respect rather than the "egotistical authority" of archaic patriarchs. He
    believed that nature determined that men and women should play fundamentally different but
    "equally noble" roles in the family and in society. Since men were the natural
    heads of families, it was necessary to grant them certain authority over their wives, but
    this should not override the principle of legal equality.

    Following this principle, Bevilaqua wrote in an early draft of the civil code that
    equal rights and responsibilities applied to "all human beings." A congressional
    review commission changed the phrase to "all men." Bevilaqua explained that this
    change was merely philological and reflected a Roman juridical tradition that inferred
    inclusion of women in universal references to "man." Yet the review commission
    also rejected—without so much as a discussion—Bevilaqua’s proposal to concede
    married women the right to represent themselves legally. Over his protests, the civil code
    reproduced the gender distinctions that had distinguished between "capable" and
    "incapable" legal subjects in the Philippine Ordinances. Husbands were legally
    capable, which meant they could represent themselves and their wives and children in court
    and before other public institutions. As "head of the couple" and holders of pátrio
    poder (paternal authority), husbands also enjoyed the power to determine where their
    wives and children would live, whether and when they would work, and how their property
    would be administered. Married women’s "inactive" status in constitutional law
    was paralleled by their "incapacity" in civil law-again, a status they shared
    with minors, the insane, and state-protected Indians.

    Bevilaqua continued to defend his opus despite these modifications, explaining that
    "the need to harmonize conjugal relations" justified the "sacrifice of
    justice" for women. He insisted, moreover, that women’s subordination to men was
    "very slight, almost merely formal" in the new code, since husbands were
    required to allow their wives to administer the household expenses and women had the power
    to control their husbands’ financial transactions.

    Although none of these justifications satisfied Brazilian feminists, who mobilized to
    improve women’s legal status almost as soon as the code was passed, it must be noted that
    married women’s property and custodial rights in the Iberian legal traditions that Brazil
    inherited were far superior to those of most contemporary European nations. In Brazil,
    husbands and wives had always been equal partners in ownership of communal marital
    property and wives retained ownership of their dowries. Under the Philippine Ordinances,
    husbands had administered common property, but needed their wives’ permission for
    important transactions. Upon the death of either spouse, the survivor maintained half of
    the common property; almost all of the other half was divided equally among children or
    other heirs. These provisions, which were maintained in the 1916 civil code, contrasted
    starkly with patrilineal traditions such as those of Anglo-American common law, which
    granted husbands full testamentary freedom and unbridled power over common property.

    As Muriel Nazzari demonstrates, however, with the gradual decline of the extended
    family over the eighteenth and nineteenth centuries, making way for nuclear families
    headed by independent men, elite women lost their position of economic equality vis-à-vis
    their husbands, and this was reflected in civil law. Unlike earlier legislation, under the
    1916 code women automatically took their husbands’ surname and husbands were required to
    support their wives and children. Commenting on these laws, Bevilaqua suggested that they
    demonstrated Brazil’s progress, since in "modern society," it was a man’s duty
    and honor to support his Wife. In any case, since relatively few professional options were
    open to women, the social and economic advantages of marriage remained considerable, and
    may even have increased, for elite women.

    The 1916 code did not modernize the legal distinction between "honest" and
    "dishonest" women, nor the laws that guaranteed the benefits of family
    membership only for the former. As was true under Philippine law, husbands could annul
    their marriages if they discovered their bride’s defloration or other evidence of prior
    dishonesty, now considered an "essential error" about her identity. Under
    another law derived from the Philippine Ordinances, dishonest, or sexually immodest,
    daughters were subject to disinheritance; this condition did not apply to sons. Women’s
    dishonesty was a serious offense: the only other behavior that resulted in the loss of
    filial rights was a criminal assault on a parent’s honor or patricide.

    Following canon law traditions, imperial and republican legislators maintained the
    principle of free will in marriage partnerships. A few radical legislators and jurists,
    joined by a small number of pioneering female professionals such as newspaper publisher
    and author Josefina Álvares de Azevedo and lawyer Mirtes de Campos, favored extending
    free will beyond marriage vows by allowing no-fault divorce. Yet while debates over
    divorce were among the major causes of the delay in the passage of the civil code,
    opposition to it was overwhelming, and it was not legalized until 1977. Civil law did
    allow legal separation, prohibiting remarriage. If the wife were poor and innocent of
    offenses to her husband’s honor, she had the right to receive alimony and child support
    from her husband. Records of marital separation litigation reveal that the separated
    woman’s subsequent dishonest behavior, or sexual relations with other men, could strip her
    of these rights.

    The rights of children born out of wedlock provoked even greater controversy than
    divorce. Iberian legal traditions were remarkably forgiving of illegitimate birth. Under
    the Philippine Ordinances, "natural" children, or those born to marriageable
    parents, possessed the same inheritance rights as legitimate children, as long as their
    parents were plebeians. Plebeian fathers could voluntarily recognize their natural
    offspring; if they did not, these children could prove paternity using various kinds of
    evidence. The law denied inheritance rights to "spurious" children, or those
    born of incestuous or adulterous unions, but the Crown could grant exceptions to this law
    along with a "certificate of legitimization." Likewise, nobles, who were not
    permitted to recognize illegitimate children (whether natural or spurious), could
    sometimes get around these restrictions by "legitimizing" their children.

    In a gesture hailed by some as enlightened, the imperial legislature eliminated
    distinctions between natural and spurious children and between nobles and plebeians in an
    1847 decree. The same decree limited fathers’ rights to voluntarily recognize illegitimate
    children and rescinded illegitimate children’s right to sue for paternity all together.
    Against protests that this law was backward and cruel, punishing innocent children for
    their parents’ sins, prominent nineteenth-century jurists and legislators defended it as
    necessary protection of "family peace, property, order and public morality" from
    the scandal and extortion of paternity suits.

    Some of these same men helped design the laws regarding illegitimacy in the 1916 civil
    code. Bevilaqua’s original draft reinstated the traditional rights of illegitimate
    children—now including both natural and spurious—to paternal support and
    inheritance. To his immense frustration, however, the "reactionary influence" of
    his opponents resulted in restrictions that made the code "less liberal than the
    Philippine legislation." Legislators reinstituted the Philippine distinction between
    spurious and natural children, now prohibiting recognition of the former unless the
    parents married (possible only if former spouses died). Fathers could voluntarily
    recognize natural children, giving them the same rights as legitimate children. Natural
    children could also sue for paternal recognition, but they usually had to prove that they
    were conceived while the father was "living in concubinage" with the mother, a
    task that was particularly difficult, since this condition was left undefined. Over the
    first half of the twentieth century, judges came to distinguish between "honest"
    and "dishonest" concubines, granting paternal recognition and other only to the
    offspring of the former.

    While jurists, legislators, and the public engaged in fevered debates over the morality
    of paternity suits, the law that prohibited illegitimate children from suing married women
    for recognition went almost unnoticed, probably because lawsuits for maternal recognition
    were extremely rare. Surprisingly, given Bevilaqua’s diatribe against the restrictions on
    paternity suits, the law restricting maternity suits was his own innovation. The law was
    unprecedented in Brazilian and Portuguese legal traditions, in which maternity was assumed
    to be obvious, and maternal recognition thus unnecessary. The measure recalls, however,
    the social practice of concealing illegitimate children in order to protect the honor of
    women and their families, a practice that was probably common throughout Brazil’s history.
    As Bevilaqua explained, the reason for the new law was to maintain "family
    peace" by defending the dignity and reputation of married women—an argument he
    rejected as "reactionary" and "hypocritical" when made in favor of
    married men. Implicitly, he assumed that it was more damaging to attribute sexual
    impropriety to wives than to husbands, so much so that justice to the illegitimate
    children in question should be sacrificed to protect the honor of legitimate families. At
    the same time, while he held men responsible for their sexual conquests, he argued that
    family women who had born illegitimate children before their marriage might have been
    victims of seduction, and thus deserved protection. Judging from its author’s
    observations, then, the law reflected both traditional cultural values that condemned
    women’s illicit sexual behavior, but not men’s, as well as the traditional paternalism
    that diluted liberal principles of equality and responsibility.

    Like the laws that defined the rights of legitimate wives and daughters, illegitimacy
    laws thus reinforced the principle of gender differentiation that emerged from the
    contentious and lengthy process of codification of civil law. Women did not share all of
    the rights of men, nor were they equal among themselves. Rather, they were capable or
    incapable; honest or dishonest, depending on their position in or outside a family.

    The above text was excerpted from In Defense of Honor _ Sexual
    Morality, Modernity and Nation in Early-Twentieth-Century Brazil by Sueann Caulfield,
    Duke University Press, 2000, 312 pp

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