The Punitive Left and the Criminalization of Homophobia

In the now classic article “A esquerda punitiva” (“The Punitive Left”), Maria Lucia Karam criticizes the Brazilian left for forsaking their deeply held beliefs on social change and uniting with those who wish to strengthen criminal law as the principal means of solving society’s conflicts and guarantee social peace.

Karam notes that the left seems to have forgotten that the repressive apparatus of the state turns itself mainly against marginalized groups, serving more often than not as a form of social cleansing, and the very proposal of more criminalization and repression coming from the left (such as the fight against financial crimes) does not solve this structural contradiction.

An example of that is the security problem created by drug trafficking: Instead of supporting even more repression to drug trafficking to reduce the feeling of insecurity, the Brazilian left should reflect on the fact that it is drug criminalization itself that creates the cycle of violence related to drugs in the country. Thus, fighting against criminal law is fighting against violence.

Karam concludes that it is the left’s role to criticize the prevailing system, not to reinforce its logic.

In Brazil’s presidential debate on 09/29, so-called dwarf candidate Levy Fidelix made some vile, homophobic and offensive statements on national TV after being asked by fellow candidate Luciana Genro about his position on gay marriage. Fidelix showed the typical heteronormative revulsion to homosexuality disguised as “defending family values,” but he went even further in declaring that the “excretory system” is not a means of reproduction and that non-heterosexuals should be excluded somehow from social life, “far away” from the rest of society to treat their supposed affection and psychological problems.

Never skipping a beat, many leftists manifested themselves in favor of criminalizing homophobia and used Fidelix’s statements as an instance of what criminal law should ban. Homophobia should be a crime in the same way racism is, according to this sector of the Brazilian left. But in defending that position, they make the punitive left’s mistake.

Criminalizing a conduct cannot be the primary means through which social conflict is solved, because it is the most coercive way of doing so and the one that should be invoked only versus aggression against individual liberties.

The idea of criminalization as a solution for all human problems has dramatically expanded state regulation of life. And according to that point of view, there is no individual behavior that cannot be potentially included in our police records.

Criminalizing unacceptable opinions has been a common tool used by each and every authoritarian regime in human history. It is not ever a tool of social transformation, but of reaction. It will not be purified because we are finally criminalizing opinions that are actually worthy of scorn. It is still an authoritarian means to shut off dissent.

As Steven Pinker shows in The Better Angels of Our Nature, great changes in human history have not come from the “criminalization of conservative opinions” (something that was not even possible at the time), but through a more complex historical process that included the decriminalization of opinions and freedom of expression. To guarantee social peace, the great liberal discovery is that we do not have to agree on everything, but only on who should have the right to decide who is right: the individual.

The process of criminalizing homophobia and racism can turn ugly in the future: Many people accuse feminists of being misandric and the LGBT movement of being “heterophobic.” While these are absurd accusations, it is not difficult to think of a defense of suppression of their discourse on those grounds, since their opposite (machismo and homophobia) can become crimes. There is no guarantee that these discourses will not become criminalized and labeled as hate speech in the future, in detriment of free debate and minorities’s rights.

Therefore, the best way to fight against racism, homophobia, and other discriminatory cultures is not through their criminalization. As Mano Ferreira wrote on his article “Por um principio da nao opressao” (“For a Non-Oppression Principle”): “In putting together a libertarian principle of non-oppression, we should have in mind an expansion of human liberty. Thus, I believe that it is through voluntary cooperation and social empowerment of the oppressed that we build legitimate and efficient bases for fighting oppression. In that process, it is necessary to deeply analyze oppression mechanisms and its possibilities of undoing — a mission in which we should recognize the importance of authors who adhere to other epistemologies, understand them and resignify them.”

Direct action and social boycott might be very useful tools for that, something which I have pointed as a helpful tool for feminists against rape culture.

The paradigm of criminalization of opinions should be abandoned when we are fighting for social progress, since the emancipation of minorities is being obtained and will be achieved through a historical consolidation, amplification and enlightenment of the networks of voluntary social cooperation, where state criminality and social oppression will be fought and rejected in favor of human freedom.

Translated into English by Erick Vasconcelos.

Translations for this article:

Markets Not Capitalism
Organization Theory
Conscience of an Anarchist