Damares could face charges of malfeasance, but she is not at risk of being impeached, experts say.

By Emylly Alves, Conjur - Reports of alleged sexual crimes committed against children on Marajó Island (PA) could result in the conviction for malfeasance of former minister Damares Alves, but she does not risk having her Senate mandate, which she won in the election on the 2nd, revoked, according to electoral experts interviewed by the online magazine Consultor Jurídico.

Last Saturday (October 8th), during a service at an evangelical church in Goiânia, Damares said she discovered three years ago that children from Marajó are trafficked abroad and subjected to bodily mutilations and dietary regimes that facilitate sexual abuse. She also stated that the number of rapes of newborns has exploded and that the Ministry of Women, Family and Human Rights — which she headed until the beginning of the election campaign — has images of eight-day-old babies being raped. 

As a result of the elected senator's statements, the Federal Public Prosecutor's Office of Pará requested on Tuesday (10/11) that the ministry provide detailed information, within three days, on all cases of complaints received by the department, whether in progress or not, in the last seven years. 

One of the electoral law experts consulted by ConJur explains that there is no possibility of Damares' mandate being revoked because she was already elected senator when she made the "accusation." However, according to him, she may have committed an electoral crime with the intention of electing another person—in this case, President Jair Bolsonaro, who is running for reelection. "If she is convicted by a final and unappealable decision, she loses her political rights. But that takes time," says the electoral expert. 

Diogo Gradim, a member of the Brazilian Academy of Electoral and Political Law, states that the former minister could be held accountable for a common crime (prevarication). According to him, however, it is not possible to speak of a crime of responsibility, since she has not yet assumed the office for which she was elected.  

"If a crime were committed within the scope of the Ministry of Women, Family and Human Rights, it would have a legal obligation to report it to the authorities. Failure to do so constitutes the crime of prevarication," says Gradim. 

The crime of prevarication ("Unduly delaying or failing to perform an official act, or performing it against an express provision of law, to satisfy a personal interest or feeling") is stipulated in article 319 of the Penal Code, with a penalty of imprisonment from three months to one year, in addition to a fine. 

Another electoral expert, Emma Roberta Palú Bueno, believes that the case does not fall under the jurisdiction of the Electoral Court. "Since the statement was made after the election, we cannot even include it in a case of disqualification foreseen in electoral legislation. It is a fact that involves her actions as a former minister, and not as a candidate." 

However, Emma considers that "if Damares is eventually convicted of malfeasance, once the judgment becomes final, she will lose her position as senator, since a criminal conviction leads to the suspension of political rights." 

In turn, Arthur Rollo points out that the Supreme Federal Court has established jurisprudence "to the effect that events prior to taking office do not warrant impeachment. What will be investigated is whether there was any omission in her actions." 

And the president?

Paulo Victor Lima, inspector of the Rio de Janeiro branch of the Brazilian Bar Association, believes that Damares Alves may have committed an electoral crime to benefit Jair Bolsonaro. However, he says it is very difficult for this conduct to legally compromise the president's campaign, "since it requires unequivocal proof of her participation, and not just the direct or indirect electoral benefit from the former minister's allegations. However, the damage may be perceived at the polls." 

According to Lígia Vieira de Sá e Lopes, a judicial analyst at the Regional Electoral Court of Ceará, if it is proven that Bolsonaro was aware of the facts, he should also be held accountable for prevarication. 

"Once convicted of malfeasance, the two would be subject to the inherent consequences of a criminal conviction, such as the loss of elected office for the elected senator and the jeopardizing the president's candidacy for reelection, with the potential for annulment of any future mandate."

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