Severidade punitiva e reincidência criminalo caso da violencia domêstica em Portugal

Abstract

The present investigation is developed with the main goal to increase the knowledge about the performance of the punitive system in the crime of domestic violence and, simultaneously, investigate its preventive operation of criminal recidivism. For this purpose, we propose to explore the performance of the punitive system in the crime of domestic violence through the study of its punitive severity, as well as to infer to what extent the punitive system has a preventive functioning of criminal recidivism, through the study of the action of the Legislator and Applicator. In this sense, the sample was consisted by 50 judicial decisions regarding the crime of domestic violence because, as a principle, this concretizes the performance of the legal system over the offender, simultaneously reflecting its retributive, dissuasive and resocializing presupposition. Enhancing the accuracy of the information obtained, only judicial decisions regarding relational domestic violence processes were considered, thus excluding those that we could classify as family contexts (such as violence against offspring). The judicial decisions that constituted the sample were explored through the Punitive Severity and Psychologization Index - (Secondary Criminalization) (ISPP-CS) (Poiares, 2009) and its quotation platform (Branco & Poiares, 2013) in order to obtain information on trends and changes in the application of the law to defendants for the crime of domestic violence, allowing at the same time an analysis at the level of the discursiveness of sentencing. The information obtained was explored through SPSS Statistic Pacage 24, using parametric and non-parametric statistical methods, depending on the variables in question, enhancing the analysis of the results obtained. In general, we believe that the results obtained in the present investigation legitimize a serious reflection on the action of the punitive system in the crime of domestic violence, particularly with regard to criminal recidivism, urging the need for a rupture with the current punitive paradigm. The action of the legal system is markedly uncertain, being broad the spectrum of punishment typologies and punitive severity applied, not being possible to establish statistically significant relations with any variable referring to the aggressor integrated in the ISPP - (CS). It also presents a predominantly intimidating action, insofar as the Legislator defines severe abstract penalties, however, the Applicator chooses to punish softly, strongly disinvesting in the psychologization of the legal process, reflected in the scarce recurrence to this area of knowledge throughout the entire process of criminalization. The seriousness of these conclusions increases when we refer to its action in the criminal recidivism spectrum where it's verified a higher divestment in the pedagogical and resocializing aspect of the punitive action, sanctioning more severely and directing with less regularity to specialized interventions. Recognizing the complexity of domestic violence crime, an effective critical reflection on legal action is necessary, reinforcing the need and legitimacy of psychological intervention in the judicial sphere, promoting a more therapeutic jurisprudence and that effectively promote its resocializing assumption.