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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