Publicada em: 23/03/2004 às 00:00

Interviews

“The overwhelming majority of adolescent crimes are not the

result of personality disorders, but of social inequality”
Michael Mogensen

23 de março de 2004 - Professor of Criminal Law at the Pontifical Catholic

University of Minas Gerais, Túlio Vianna’s ideas regarding the treatment of
adolescents at conflict with the law were widely discussed after the publication
of his article "And if Liana was called Maria and Felipe was named João?" in the
magazine Caros Amigos and in various Internet sites.

The article on the murders last year of two upper-middle class adolescents by
an adolescent from a favela in São Paulo caused a stir based on statements
such as: "What is shocking in the murders of Liana and Felipe are not the
circumstances in which they were killed, but the transference of the reader-tv
viewer-consumer, who puts his/her own children in the place of the victims.
The deaths of Marias and Joãos (common names among less well-off Brazilians) do not shock,
because they are from the favelas, the periphery, from places too distant and ‘dangerous’ – the
quotation marks are fundamental – for most middle-class children."

After the debate regarding the reduction of the legal age at which minors can be tried and
incarcerated as adults had begun to die down, the professor was invited by the Internet site the
Law Channel to take part in a chat room discussion (http://www.canaldireito.com.br). Túlio spoke
on under-age minors at conflict with the law, affirming that justice does not mean putting even
more poor adolescents in prison, but granting them their rights. With his colaboration, COAV
selected 5 questions and answers from the chat session.

1 – Do you think that differentiated treatment, different than what is given in the
prisons, is capable of re-educating, re-socialising and psychologically re-structuring a
minor at conflict with the law?

TV – Prison is in a sense a hypocrisy, since it seeks to re-socialise the individual by removing him
from society, segregating him, and then returning him to society. By definition it does not
re-socialise, but does the opposite: segregates. If it doesn’t work with adults, imagine with
children – or worse – adolescents!

Behaviour can be changed by given children options. Today, the child that is born at the margins
of society is faced with having to work in drug traffic. It is the only effective way that he has to
get out of misery. If there are not effective social policies, we will end up reducing the legal penal
age for children to 16 years, then 14 and it won’t change anything, since children are entering the
drug trade at 12 and 10 years of age.

2 – Do you think that immaturity and a lack of self-control on the part of adolescents
hinders or prevents their ability to fully understand their acts?

TV – The case of the Indians set on fire in Brasilia would fit that definition. If it was a homeless
person who set fire to a deputy or judge’s son you can be sure that he would either be dead or
rotting in jail. The rich, in general, are in some sense immune from Brazilian justice. Reducing the
legal age at which minors can be imprisoned is not going to change that.

3 – What do you have to say regarding the ability to marry at 16, to vote at
16 and to work at 14?

TV – I am against the right to vote at 16. It is true that there are adolescents who are
more politicised than adults, but the majority do not have the capacity to vote
seriously. Marriage is a private matter, if it doesn’t work out then you get separated.
The worst is the adolescent who can or needs to work at the age of 14...They need to
be in school! But there we return to social issues...They need to work (or rob or
traffic) to sustain themselves and often their families.

4 – Is there any kind of regulation or law, outside the Penal Code, regarding
the minimum penal age?

TV – Yes, the Federal Constitution, in article 228, sets the minimum age for
incarceration at 18 years. In fact, this whole discussion regarding the penal age is
very media driven, since it is a constitutional matter and one that cannot be modified.
The media is very perverse when it comes to criminality. We see headlines such as:
“Minor assaults adolescent.” The poor are “minors” and the rich are “adolescents.” The
media sees the problem from the perspective of the middle class and the rich, who are
always the victims. They are not concerned with the social question, but with
neutralising the “threat” that these adolescents supposedly represent to society.

5 – What are the criteria adopted to establish the penal age?

TV – There are two basic criteria in regard to the minimum legal penal age: biological
and a normative bio-psychological criteria. The first is the one adopted by our code: at
18 years of age the subject is an adult. The other takes into account a “gray area” in
which the judge decides if the minor can or cannot be held accountable. It is the
criteria adopted in the USA, where if the child is less than 7 years of age he cannot be
held responsible under any hypothesis, but if he is older than 7 and less than 14, 16
or 18 (depending on the state) there is the question of whether or not he/she is
capable of understanding the gravity of the act committed.

6 – What is the solution for the child or adolescent in conflict with the law?

TV –
School. If he or she was in school, if they had a perspective in life, no matter how
minor, they would think twice. No one likes being a criminal and living at the margins
of society. The majority, if they could choose, would prefer to be studying or working.
If we accept punishing minors when we do not have the conditions to put them in
school, we are admitting that they should pay for the inefficiency of the State, which
is not only contradictory but very perverse. The truth is that it is much easier to
reduce the penal age than to educate these adolescents. It is easier to construct a
prison than a school, isn’t it?

7 – And when an adolescent who has access to their full rights carries out an illegal act?

TV – The case of the Indians set on fire in Brasilia would fit that definition. If it was a homeless
person who set fire to a deputy or judge’s son you can be sure that he would either be dead or
rotting in jail. The rich, in general, are in some sense immune from Brazilian justice. Reducing the
legal age at which minors can be imprisoned is not going to change that.

8 - Given that the criteria for setting the penal age is a person’s maturity, and
considering that adolescents are maturing quicker, wouldn’t it make sense for us to
re-consider the consciousness of an adolescent of 16 or 17 years old who pushes the
trigger?

TV - The criteria is not just consciousness of the illegal act; but also the demand for different
behaviour. How are you going to demand that this 16 year old adolescent does not pull the
trigger? When he cried from hunger as a baby, the State did not provide food; at Christmas, the
State did not give him presents; it did not give him decent schools so that he could one day get a
job; the State only remembers him when he pulls the trigger and even then only when it is to kill
someone from the elite, because if it is to kill someone poor, he will most likely not be held
responsible...the question is: can the State demand of him a different form of conduct?
9 – If the State cannot demand of the adolescent who did not have his rights respected
as a child a different form of conduct, can it do so when he becomes an adult?

TV – I agree with you: it cannot. We should conduct a campaign to raise the legal penal age to
21. What do you think?

10 – What do those who defend the lowering of the age at which adolescents can be
tried and held as adults base their arguments on?

TV – Those who defend reducing the age base their arguments on a sophism: by lowering the
penal age minors will choose to not commit crimes in order to avoid the penalty. Look, the child
that enters the drug trade at 12 years of age is concerned with not getting shot by rival
traffickers, or by the police, or by death squads, etc...And he is not scared! Why would he be
scared of Penal Law?

Túlio Vianna (http://www.tuliovianna.org/) is the author of Fundamentals of Information

Technology Penal Law (Forense, 2003) and co-author of the books Legal Internet: Law and
Information Technology (Juruá, 2003), Law and Information Technology: polemical topics (Edipro,
2003) and Information Technology and the Internet: international legal aspects (Adcoas, 2001).

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