1090252

research-article2022
CSI0010.1177/00113921221090252Current SociologyPasinato and Ávila

Special Subsection: Re-imagining what counts as Femicide CS

Current Sociology

Criminalization of femicide
2023, Vol. 71(1) 60­–77
© The Author(s) 2022
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DOI: 10.1177/00113921221090252
https://doi.org/10.1177/00113921221090252
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Wania Pasinato
United Nations Women Consultant, Brazil

Thiago Pierobom de Ávila

Monash University, Australia; UniCEUB University, Brazil

Abstract
The concept of femicide was created within the feminist theoretical field of studies
influencing Law reform in Latin America. Eighteen countries throughout the region have
criminalized femicide based on different legal provisions, in intimate and nonintimate
relations. This article aims to provide a comparison of legal definitions of femicide as
adopted in Latin American legal frameworks and to analyze the challenges of using law
to give a name to the gender-based killings of women. The transition of the concept to
law may partially impact its potential since other forms of gender-based violence may be
hidden in a general clause of ‘gender prejudice’. It may also lead to restricted recognition
in the legal system since traditionally this system operates in a conservative way wherein
individual criminal liability has limitations in addressing institutional discrimination.
Despite regional challenges, criminalization has contributed to raising social awareness
on gendered killings. It has induced improvements in statistics and pushed for more
attention on prevention policies and support for survivors and relatives. Nevertheless,
current conservative movements tend to stress only the punitive approach and entail
backlash on gender equality policies. This comparative study aims to contribute to a
better understanding of the concept in the region.

Keywords
Definition, femicide, Latin America, law, limitations

Corresponding author:
Thiago Pierobom de Ávila, SQSW 305, bloco A, apt 215, Brasilia, DF - 7067421, Brazil.
Email: thiago.pierobomdeavila@monash.edu
Pasinato and Ávila 61

Introduction
The killing of women due to gender reasons is a major concern globally. According to
UNODC (2019: 10), 87,000 women were killed intentionally in 2017, about 30,000 by
an intimate partner and other 20,000 by a family member. Central America, the Caribbean,
and South America are the global regions with the highest rates of violent deaths of
women (Small Arms Survey, 2016).
Following its colonial violent foundations, Latin American countries have experi-
enced political instability, humanitarian crises, civil war, conflicts with drug mafia, mas-
sive problems with criminality, and military dictatorships. The colonial past has produced
deep wounds of exploitation and violence in public and private relations, exacerbating
socioeconomic inequalities and racism, and creating a specific coloniality of gender rela-
tions (Lugones, 2014; Segato, 2012).
The concept of femicide was created in the feminist theoretical field of studies, then
migrated to political feminist activism, influencing Law reform in Latin America since
the decade of 1990 (Corn, 2014). All countries from continental Central and South
Americas, except for Belize and the Guianas, have passed legislation criminalizing femi-
cide (MESECVI, 2018).
This article aims to provide a comparison of legal definitions of femicide in Latin
American legislation and to analyze the challenges of using law to give a name to the
gendered killings of women. It departs from previous studies on comparative gender
violence laws (Bertolin et al., 2020; CLADEM, 2012; Deus and Gonzalez, 2017;
Essayag, 2017; Fregoso and Bejarano, 2010; Garita Vílchez, 2013), updated with consul-
tation on official websites on legislation, considers the Inter-American Model Law on
Femicide (MESECVI, 2018), and uses the feminist literature to discuss the potential and
limits of these reforms (Ávila, 2018; Casaleiro, 2014; Corn, 2014; Lagarde y de los Ríos,
2006; Machado, 2020; Monárrez Fragoso, 2002; Pasinato, 2011; Quiñones, 2017;
Segato, 2006; Toledo Vásquez, 2014). The comparative analysis may contribute to con-
solidate a shared understanding of femicide, inducing better statistics and tailored pre-
vention policies.

History of the concept

In 1976, the concept of femicide was presented by Russell (1992: xiv) to indicate the
killing of women by males because they are women. Later, Russell argued misogyny was
the cause of femicides, located ‘on the extreme end of a continuum of anti-female terror
that includes a wide variety of verbal and physical abuse’ (Caputi and Russell, 1992: 15).
The list of abuses against the female body may comprise rapes, genital mutilation, moral
offenses, deaths after unsafe abortion, and other acts that may result in the death of
women and girls. These deaths, intentional or not, result from historical, social, and
political processes that legitimate violence against women as an expression of the sexual
politics of male domination over female bodies (Russell, 1992; Segato, 2006).
The expression ‘feminicidio’ was used by feminist movements since the decade of
1980 to name the killing of women for the fact of being women (see Fregoso and
Bejarano, 2010; Pola Zapico, 2006). Monárrez Fragoso (2002) argues that the first in
62 Current Sociology 71(1)

Latin America to write about the concept was Mexican feminist Marcela Lagarde y de
los Ríos, in a 1997 human rights’ course written material. She translated this concept
as ‘feminicidio’, ‘precisely to avoid the confusion in Castilian for ‘femicidio’, or a
female homicide’ (Lagarde y de los Ríos, 2006: 221). She argued that Russell’s con-
cept should not only differentiate homicides against men and women but be under-
stood as a paradigm of the specific characteristics of women’s killings, distinct from
male killings. Highlighting these specificities should induce the formulation of pre-
vention policies.
The translation of Russell’s concept was not uniform. Carcedo and Sagot (2000)
translated it as ‘femicidio’, arguing it ‘indicates the social and generalized character of
the violence based on gender inequality, waiving individual, natural or pathological
arguments’ (p. 12). Monárrez Fragoso (2002) used the expression ‘feminicidio’ to ana-
lyze the serial sexual killings in Ciudad Juarez, considering it an expression of ‘the
sexual exploitation hierarchy that comprises race, gender and social class’ (p. 295).
Pola Zapico (2006) uses the expression ‘feminicidio’ but considers it a synonym for
‘femicidio’. For Fregoso and Bejarano (2010: 4), the preference for the ‘feminicide’
expression has also as a critical decolonial perspective, aiming to ‘center the relevance
of theories originating in the global South for the formation of an alternative para-
digm’. Despite the expression being created in the global North by Russell, Latin
American feminists have advanced new meanings to the concept, adapting it to local
contexts.
From a theoretical perspective, the concept of femicide has a cause (gender inequal-
ity) and a reinforcing motor (impunity). It is caused by the social organization of gender,
based on male supremacy and the control of women’s sexuality, which leads to women’s
submission to oppressive powers in everyday life in private and public spheres. The
change in the analytical tool from sex to gender represents an effort to ‘shift the analytic
focus on how gender norms, inequalities, and power relationships increase women’s
vulnerability to violence’ (Fregoso and Bejarano, 2010: 4). Femicide is a fruit of gender
socialization, leading men and women to reproduce and justify social hierarchies derived
from gender roles and normalizing violence against women as a structural part of the
gender-oppressive system (Sagot and Carcedo Cabañas, 2010). Femicidal violence has a
political motivation, as a means to perpetuate power relations (Caputi and Russell, 1992:
16). This discriminatory characteristic of gender-based violence allows its categorization
as a hate crime, like racism, homophobia, and religious intolerance, thus requiring a
specific human rights’ approach.
Another particularity of the concept addresses the State responsibility in the continu-
ity of women’s killings. Lagarde y de los Ríos (2004) claims that the neglect of the State
to tackle gender discrimination and its maintenance of discriminatory legislation and
practices is a form of institutional violence, making femicide a State crime. According to
her, femicide ‘is followed by all the institutional violences that leads to impunity, in other
words, we include in [the concept of] femicide the institutional violence as a part of the
phenomenon’ (Lagarde y de los Ríos, 2006: 223). It represents a fracture in the rule of
law, denying women’s recognition as citizens and subjects of rights. The diffuse violence
against women is reinforced and normalized as inevitable by the omission of public
authorities and complicity of other men, creating what Segato (2006) calls a patriarchal
Pasinato and Ávila 63

fraternity, although other researchers, such as Sagot, consider that including impunity
and State compliance in the femicide concept may be limiting and should not be deci-
sive, since gender-based violence is a universal problem transcending borders (personal
communication apud Fregoso and Bejarano, 2010: 8).
During the 2000s, studies on gender violence and intersectionality fostered a better
comprehension of the causes and contexts of femicides. Carcedo and Sagot (2000), ana-
lyzing killings in Costa Rica, classified femicides in intimate, nonintimate and by con-
nection. Later, new categories were created to name femicides derived from sexual
orientation, gender identity, age, race, and ethnicity, in the context of human trafficking,
drug smuggling, and sexual exploitation (Brazil, 2016).
In brief, the categorization of femicide aims to denounce the political dimension of
the gender-based motivations of women’s killings, derived from a structural increased
risk of violence (Machado, 2020; Segato, 2006). The transition of the concept from a
feminist theoretical framework into criminal law aims to promote public awareness,
facilitate prevention policies, produce better statistics, promote better treatment of survi-
vors and secondary victims in court, and promote appropriate accountability for perpe-
trators (Ávila, 2018).

Evolution of the criminalization of femicide in Latin

America
The criminalization of femicide has a background in international conventions on
human rights and women’s rights (OAS, 1969, 1994; UN, 1948, 1966, 1979). After the
Belem do Para Convention (OAS, 1994), many feminist activists and scholars
demanded reforms to the legislation to incorporate the conventional gender equality
principles within the national legal framework (Bertolin et al., 2020; Garita Vílchez,
2013; Toledo Vásquez, 2014). According to Garita Vílchez (2013), this Law reform
process had three ‘generations’ of legal provisions. It began in the 1990s with a first
generation of laws, aiming at domestic and intrafamily violence with protection meas-
ures, not yet criminal. These laws were gender-neutral, leading to the invisibility of the
specific gender reasons affecting women, but they allowed violence against women to
be dealt with in the justice system.
Laws of the second generation were issued after 2005, broadening the comprehension
of violence against women to comprise violence in the public space as forms of sexual,
psychological, patrimonial, institutional, obstetric, and labor violence, as well as includ-
ing the criminalization of some of these forms of violence. These second-generation laws
used the gender approach from the Belem do Para Convention and CEDAW, promoting
specific regulations to protect women. These laws have interdicted mediation of gender-
based violence, pursued to promote adequate accountability of perpetrators and recog-
nized State omission as a form of institutional violence. Until 2016, all countries in the
Latin America and the Caribbean had generic laws addressing domestic violence against
women, but only nine of them had second-generation laws: Argentina, Bolivia, Colombia,
El Salvador, Guatemala, Mexico, Nicaragua, Panama, and Venezuela (Essayag, 2017).
Finally, after 2007, a third generation of laws created the crime of femicide, stressing the
gendered reasons for these killings.
64 Current Sociology 71(1)

The sentence of the Inter-American Court on Human Rights in the case González and
others versus Mexico, also known as the Cotton Field case, is emblematic in the recogni-
tion of the femicide concept at an international level (IACHR, 2009). Considering the
lack of accountability in the killings of women in Juarez City, the court held: ‘in the
instant case the Court will use the expression “gender-based murders of women,” also
known as femicide’ (IACHR, 2009: § 143). It also recognized that the Mexican State
failed to enforce women’s right to protection, determining the State should promote pre-
vention policies and due reparation for these crimes (Bertolin et al., 2020).
The two first countries to criminalize femicide were Costa Rica and Guatemala, after
an important advocacy of feminist organizations (Bertolin et al., 2020; Corn, 2014;
Garita Vílchez, 2013). In Costa Rica, criminalization was passed in 2007, with a restric-
tive concept of femicide, comprising only marital relations. A 2021 Law reform
expanded the concept for intimate partner relations, even without cohabitation. In
Guatemala, the law was passed in 2008, with a broader concept of femicide in private
and public relations.
These two first legislations represent two different models of conceptualization, a nar-
row one and a broad one. The restrictive definition of femicide of Costa Rica may have
influenced the first regulations of femicide on Chile (2010) and Peru (2011), both com-
prising only marital violence. These countries have later changed their legislation to
enlarge the definition and include forms of non-intimate femicide (in 2020 and 2013,
respectively). Currently, only Costa Rica and the Dominican Republic define femicide
strictly in an intimate relations’ approach. The Guatemalan legislation was used as a
model for many other countries of the region, which included other examples of misogy-
nist violence in non-intimate relations, improving the concept and its use as a political
category (see Bertolin et al., 2020; Corn, 2014).
In 13 years, 18 countries in the region have criminalized the gendered killing of
women, using the expression ‘femicidio’ or ‘feminicidio’ (see Table 1).
There are different legal strategies prevailing the creation of an independent crime.
This option reflects the political intent to lend visibility to the killings and promote
advances in policies. However, legislations are not uniform in the definition of femicide.
Categories of killings (intimate and nonintimate) are used to translate to law the social
phenomenon. Legal categorization usually spotlights some types of killings, with the
unintended consequence of leading to shadow a broad recognition of gender violence
against women, as discussed below.

Main categories recognized as femicide in Latin America1

Intimate femicide
This category usually includes three contexts: intimate partner, which corresponds to
most of the gender-based killings (UNODC, 2019: 8), family members, and domestic
relations. Most countries comprise in this circumstance both marital relations (spouse
and de facto spouse) and other forms of intimate partner relations (dating or engage-
ment), current or past (as Guatemala, Costa Rica, Chile, Argentina, Nicaragua, Bolivia,
Venezuela, Brazil, Ecuador, Panamá, and Paraguay).
Pasinato and Ávila 65

Table 1.  List of Latin American femicide legislation.

Country Year Statute Legal Name(b)

(a)
Strategy
Costa Rica 2007 Law n. 8589, art.(c) 21 A α
  2021 Law n. 9975 (Law n. 8,589, art. 21) A α
Guatemala 2008 Decree n. 22, art. 6 A β
Chile 2010 Law n. 20,480/2010 (Penal Code, art. 390) B α
  2020 Law n. 21,212/2020 (Penal Code, art. 390 bis) C  
El Salvador 2010 Decree n. 520, art. 45 and 46 A β
Peru 2011 Law n. 29,812/2011 (Penal Code, art. 107) B α
  2013 Law n. 30,068/2013 (Penal Code, art. 108-B) C  
Argentina 2012 Law n. 26,791 (Penal Code, art. 80, items 1, 4 and 11) D None
Mexico 2012 Law from 14 Junio 2012 (Federal Penal Code, art. C β
(Federal level) 325)
Nicaragua 2012 Law n. 779, art. 9 A α
Honduras 2013 Decree n. 23 (Penal Code, art. 118-A) C α
Panama 2013 Law n. 82 (Penal Code, art. 132-A) C α
Bolivia 2013 Law n. 348 (Penal Code, art. 252-bis) C β
Dominican 2014 Law n. 550 C β
Republic (New Penal Code, art. 100)
Ecuador 2014 Penal Integral Organic Code, from 10 February2014 C α
(Penal Code, art. 141 and 142)
Venezuela 2014 Law n. 40,548, art. 57 and 58 A α
Colombia 2015 Law n. 1761 (Penal Code, art. 104A) C β
Brazil 2015 Law n. 13,104 (Penal Code, art. 121, § 2, item VI D β
and § 2-A)
Paraguay 2016 Law n. 5777, art. 50 A β
Uruguay 2017 Law n. 19,538 (Penal Code, art. 312, item 8) D α

Source: Elaborated by the authors after consultation on official Internet websites.

(a)
A: Independent crime on specialized statute.
B: As a form of parricide on Penal Code.
C: Independent crime on Penal Code.
D: Aggravated homicide on Penal Code.
(b)
α: Femicidio.
β: Feminicidio.
(c)
art: Article.

Other countries, such as Colombia and the Dominican Republic, only refer to intimate
partners, indicating this clause would comprise both marital and dating relations. In
Guatemala and Ecuador, the engagement relationship is included in a separated legal
clause, besides the intimate partner clause. This independent provision is important to
comprise those situations where a woman is killed in the context of being promised an
arranged marriage, but never meeting the fiancé in person.
Some countries, such as El Salvador and Uruguay, do not include specifically intimate
partner violence in the legal definition of femicide, using other general clauses that may com-
prise this situation, such as previous violence by the perpetrator. The lack of an independent
66 Current Sociology 71(1)

clause for intimate partner violence may in practice lead to evidentiary problems, since the
justice system may consider there was not enough evidence of previous violence, potentially
downgrading the case from femicide configuration (Bertolin et al., 2020).
A second context of intimate femicide are killings perpetrated by family members,
explicitly included in the legislation of Guatemala, Colombia, Peru, Mexico, Nicaragua,
Brazil, Ecuador, and Panamá. Finally, the third situation of intimate femicide is domestic
relations. It comprehends people living in the same house of the woman, even not being
part of her family or having an intimate partner relationship. Legal clauses refer to
acquaintanceship (convivencia) (Guatemala, Colombia, Nicaragua, and Ecuador) or
domestic unit (Brazil). This clause may be important to include the maid or other domes-
tic workers, a common situation in Latin America.
There are also two other situations that remain in a gray zone between intimate and
non-intimate femicide: friendship relation and romantic stalking. Guatemala, Colombia,
Nicaragua, Bolivia, and Ecuador explicitly include the killing in a friendship or fellow-
ship (compañerismo) relation inside the concept. The reference to fellowship may indi-
cate that it would not necessarily be a close friend, but to have a relation derived from
common interests. Mexico, Ecuador, and Panama legislations include the relation of
trust, which may comprise the friendship relation.
Guatemala, Bolivia, Chile, Nicaragua, Dominican Republic, Ecuador, Panamá, Uruguay,
and Paraguay consider that there is femicide in the context of a frustrated intention to estab-
lish an intimate relation (sentimental or sexual). This is a common situation of stalking
experienced by women, called ‘love obsessional’, ‘intimacy seeker’, ‘unrequited love
stalker’, or ‘delusional fixation’ (Miller, 2013: 497). While this type of violence usually
takes place in a public space, the perpetrator aims to enter the intimate sphere.
Finally, there are also other forms of gender violence that indirectly targets the woman.
For example, in Argentina, it is an aggravated form of homicide to perpetrate the crime
‘if the intention of causing suffering’ to the marriage partner, current or past, which
would be the case of killing the child as revenge against the mother, what is called ‘trans-
versal revenge’ (Corn, 2014: 123).

Nonintimate femicide
This category applies to perpetrators without a previous intimate relation when the cause
of the killing is related to the condition of women, gender discrimination, unequal rela-
tions of power, relations of superiority or dependency, and risk or vulnerability related to
gender. It also includes killings in public spaces, for example, in educational or labor
relations, where the hierarchical relations are pervaded by gender inequality.
Most countries nominate these forms of femicide as ‘the violent death of a woman, in
the context of inequal power relations of men and women, as an exercise of the gender
power against women’ (Guatemala), then includes a list of examples of circumstances
where law presumes there is a gender discrimination, usually followed by a general clause
to comprise other situations. For example, in Colombia, the legal clause is ‘taking advan-
tage of power relations against the woman, as a personal, economical, sexual, military,
political or sociocultural hierarchization’. This relation of superiority may include other
forms of authority, such as teachers, sports coaches, and religious or political leaders.
Pasinato and Ávila 67

Other countries such as Mexico, Honduras, and Uruguay, despite including a list of
circumstances, do not use a closing general clause. In Bolivia and Paraguay, though not
using a specific general clause, refer to a ‘relation of subordination or dependency to the
perpetrator’, with previous violence, and specifically in Bolivia this includes killings
motivated by ‘cultural practices’.
Some countries, such as Brazil and Argentina, only use a general clause with no list
of examples. Brazil uses only a broad expression ‘with contempt or discrimination to the
condition of woman’. Argentinian legislation requires to have ‘gender violence’.
The most common clauses are related to the existence of previous violence by the
perpetrator or a killing associated with sexual violence, mutilation, or public exhibition
of the body. Sexual violence is a continuum of violence (Kelly, 1987), beginning with
disrespectful jokes, harassment, stalking, unintended touches, threatening, up to the use
of forced sexual relation and killing. These clauses are a clear reference to the Cottonfield
cases and the female outrageous conditions associated with these expositions. According
to Segato (2006), these mutilations indicate that taking life was not enough, an annihila-
tion of the femininity of the victim was necessary, the ultimate expression of discipline
for challenging gender roles and to assert man’s power in the public sphere.
The second group of independent circumstances of femicide is under labor relation
(Guatemala, Colombia, Mexico, Nicaragua, Bolivia, and Panamá) and in educational
relations (El Salvador, Mexico, and Nicaragua).
The third category of nonintimate femicide is when the killing is a way of offending
the enemy, a symbol of power, using women as a disposable object in this violent com-
munication (Segato, 2006). This clause is part of the Colombian Law, as the killing of
women is a means to ‘perpetrate the crime to generate terror or humiliation to an enemy’.
In Nicaragua and Venezuela, the legal provision recognizes femicide when it is perpe-
trated by criminal gangs. As in the cases of Juarez City, organized crime gangs may have
conflicts with adversarial groups or even authorities.
Other circumstances to recognize femicide are the previous restriction of a victim’s lib-
erty (Colombia, Mexico, Bolivia, and Panama), under group rituals (Guatemala, Nicaragua,
Bolivia, and Panamá), in the context of human trafficking or some type of sexual exploita-
tion (Peru, Bolivia, and Venezuela) and because of the sex profession (Chile).
Finally, Colombia and Chile have included in the concept of femicide the discrimina-
tion related to sexual orientation or gender identity or its expression, which may include
transgender women.
In Uruguay and Argentina, the same law that criminalized femicide also created an
aggravated circumstance for homicide motivated by discrimination on sexual orienta-
tion, gender identity, race or ethnicity, religion, or disability, thus outside the concept of
femicide, comprising male victims.

The induction to suicide as a parallel type of gendered killing

Three countries in the region have created specific crimes for the induction of suicide
because of gender violence. In El Salvador, it is called ‘femicidal’ suicide by induction
or support (Decree n. 520/2010, article 48), when there are previous acts of gender vio-
lence indicated in their specialized law or abuse of the superiority derived from the
68 Current Sociology 71(1)

relation with the victim. Bolivia (Penal Code, article 256) and Venezuela (Law n.
40,548/2014, article 59) have similar crimes. The desperate taking of women’s own life
may be the only perceived escape from an abusive relationship. This type of crime may
facilitate the recognition of the suicide of women as a form of gender violence.

Analysis of the potential and challenges of legal concepts

A legal definition of femicide is a prerequisite to accounting since it makes clear
what should be inside the concept, allowing comparability. There are two models for
femicide: restrictive and extended. The ‘shy femicide’ (Corn, 2014) of Costa Rica
and the Dominican Republic (comprising only intimate partner relations) are inco-
herent with the origins of the concept and lead to the invisibility of gender violence
in the public sphere. The extended concept of femicide, comprising intimate and
nonintimate relations, is essential to give visibility to the many forms of gendered
killings. In Costa Rica, the justice system had to create a parallel statistic for other
forms of gendered killings, to complement the restrictive legal definition (Toledo
Vásquez, 2014).
Femicide, as a sociological concept, aims to denounce all forms of deaths of women
derived from gender inequality, not necessarily intentional (Russell, 1992). According to
Corn (2014: 107),

We may think of the selective abortion of female babies, or female infanticide (as in some Asian
countries, when people prefer to have a male child); in the diversion of family resources in
favour of male members, causing malnutrition, lack of medical assistance and school dropout
to girls; not to speak in ‘honour’ killings and dowry related deaths, or more ‘modern’ examples
as trafficking in women and, in general, violence against women inside or outside family.

Lagarde y de los Ríos (2010: xvi) considers that feminicidal violence

[. . . ] implies the violent deaths of girls and women such as those that result from accidents,
suicides, neglect of health, and violence. [. . . ] This definition takes as the point of departure
the assumption that such deaths are caused in the framework of gender oppression and other
forms of oppression and therefore are avoidable. Because of this, they are violent deaths.

But when this broad concept moves over to a legislation, there is a risk it may lose
partially its potentiality since other forms of gender violence may be hidden in a general
clause of ‘gender prejudice’ (Toledo Vásquez, 2014). This is the case of Mexico,
Honduras, and Uruguay, which only use a list of circumstances without a general clause.
This analysis of the legislation demonstrates there is no uniformity in legal concepts
between countries. In fact, the criminalization of femicide was not unanimous among
feminist scholars. According to Pasinato (2011), there was not, in Brazil, enough knowl-
edge accumulation of how gendered killings took place in the public space, to hold an
accurate conceptualization.
On the other hand, a general clause of nonintimate femicide using a broad sociologi-
cal category of ‘gender prejudice’, as in Brazil and Argentina, without a commonly
agreed exemplification list, creates ‘unspecified legal concepts’, open blanks that
Pasinato and Ávila 69

transfer to legal interpreters the power to fill the content. This expropriation of the power
to define femicide, from feminist activism to criminal agencies (Toledo Vásquez, 2014),
leads to a restrictive recognition by the legal system since it tends to operate in a con-
servative way. Research in the Federal District of Brazil found no application of the
general clause during 2016 and 2017, even though there were cases of gender discrimi-
nation, as derived from prostitution or religious rituals (Ávila et al., 2020). The selective-
ness of criminal records and poor quality of collected information are also challenges to
the recognition of femicide.
Considering the restrictive interpretation of criminal law, derived from the so-called
legal type principle, the use of law to denounce gender inequality should, ideally, depart
from closed definitions of law that already exemplify gender inequality. It is necessary to
convert the sociological concept into an operational criminal law category. For example,
half of the countries analyzed have a legal clause of frustrated intention to establish an
intimate relation, which may facilitate the recognition as femicide of killings in the con-
text of sexual harassment in the public space. The clauses related to educational and
labor relations are important to recognize the projection of gender relations to the public
sphere, requiring men to demonstrate a hypersexualization to prove their virility, expos-
ing women to constant harassment (Segato, 2006).
After a review of all regional legislations, MESECVI (2018) proposed a Model
Law on Femicide. It is an effort to induce countries to include a list of circumstances
of femicide, leading to substantiation and convergence on the concept. For example,
MESECVI (2018: 29) proposed a list of situations of vulnerability that should aggra-
vate the femicide:

That the woman is in a situation of vulnerability due to her race, ethnic condition, descendant
of the original peoples, is indigenous, migrant, refugee, in forced displacement, is pregnant,
with disabilities, is in an unfavourable socioeconomic situation or is affected by situations of
armed conflict, political violence, human trafficking or migrant smuggling, or labour
exploitation, sexual exploitation or natural disasters.

As Corn (2014: 111) argues, ‘to say, simply, that the crime of femicide punishes the
homicides of women “by the fact of being a woman” is something that does not have a
direct legal linkage’. According to UNODC (2019: 8), ‘The notion of gender-related kill-
ing, or “femicide,” requires an understanding of which acts are gender related – some-
thing that is subject to a certain degree of interpretation’.
For example, Chilean law requires self-evident unequal gender relations or dis-
criminatory mens rea (Bertolin et al., 2020). Uruguayan legislation refers to ‘motiva-
tions of rate, prejudice or contempt against women’ and indicates that legal
presumptions of gender discrimination may admit evidence to the contrary. This ref-
erence to individual motivations may lead courts to deny the recognition of femicide
(Bertolin et al., 2020; Toledo Vásquez, 2014). Most perpetrators are not conscious
that they are reproducing acts of gender violence since these behaviors are socially
accepted. In Brazil, there were divergent interpretations on the nature of femicide, if
subjective (motivational) or objective (circumstantial), for feminist advocacy to con-
sider it objective (Ávila, 2018; Machado, 2020). With the purpose of avoiding
70 Current Sociology 71(1)

discussions on mens rea, MESECVI (2018) Model Law recommends using a list of
objective circumstances, which presume the gender reasons behind the killings.
Clauses referring to the individual vulnerability of a woman may induce to shift atten-
tion from the macrosocial aspects of gender relations.
What is striking from a feminist activist perspective may not be so visible to an ortho-
dox legal practitioner. In Brazil, research shows some courts are excluding family vio-
lence from the concept of gender-based violence, when there are collateral motivations,
such as patrimonial and custody disputes, or when there are alcohol or illegal drugs
problems (Machado, 2020). According to Pasinato (2011), the growing participation of
women in crime has exposed them to new forms of gender violence, not self-evident for
legal practitioners. Mexican feminist experts recognize that the femicide law is usually
applied only in the intimate context, ignoring killings related to organized crime (Bertolin
et al., 2020: 279).
Even when there is a list of objective circumstances for femicide, legal interpretation
may create problems. Aggravated forms of femicide may only be recognized after there
is femicide; so, if the exemplifying list of circumstances is only included in the aggra-
vated femicide, this legal construction may have limited impacts in practice. There are
also challenges to translate to law the intersectional and decolonial perspectives, bring-
ing complexity to the plural experiences of Latin American women.
Thus, what should be a denouncing tool of the invisible structural gender relations
turns into an evidentiary precondition to enforce the law. The usual gender blindness of
the legal system may find new ways to disregard women’s experiences by saying there
was not enough evidence of gender discrimination in a specific case. This restrictive
interpretation may create unreal statistics that will have the exact opposite effect of giv-
ing visibility to gender violence.
According to Foucault (2001), what law recognizes as truth is the fruit of the political
frame in which legal practitioners are immersed. When the legal system repeatedly
denies the recognition of gender violence, it may be creating a new discursive truth that
denies the existence of gender relations. According to Casaleiro (2014), law is a space of
dispute on the meanings of gender, advocating the possibility to rebuilt law on a feminist
basis. This dispute is tangible. In Brazil, during parliamentary debates, the expression
‘gender’ was substituted by ‘condition of female sex’, aiming to avoid the reach of the
law to transgenders and to restrain gender relations debates (Bertolin et al., 2020).
This new perspective of femicide as a violation of the human right to a life free of all
forms of violence, as stated in article 3 of the Belem do Para Convention (OAS, 1994),
may have the potential to induce a more comprehensive sense of justice, based on the
indivisibility of human rights (Fregoso and Bejarano, 2010). Creating a legal category to
comprise this extreme form of gender violence is essential to bring it into existence in the
legal world (CLADEM, 2012). This indivisibility should call for deep changes in social
structures, especially on social rights.
Furthermore, the use of criminal law to denounce all forms of gendered killings has
intrinsic limitations related to individual liability. For example, there is a struggle in
Mexico to include in the concept of femicide deaths resulting from obstetric violence
(Bertolin et al., 2020). In the same way, according to MESECVI (2018: 29), the omission
to practice a therapeutic abortion followed by death should be considered a femicide.
Pasinato and Ávila 71

However, usually crimes by health workers who do not have a direct intention to kill may
constitute manslaughter (homicídio culposo). Femicide laws do not comprise negligence,
only direct intention to kill.
When femicide is defined in law as an individual act, the critical perspective of criticiz-
ing the State for impunity, corruption, and collusion may lose strength (Bertolin et al.,
2020; Toledo Vásquez, 2014). There are also other forms of virtually taking away a wom-
an’s life, such as creating definitive psychological damage that may impair her life possi-
bilities, which would have limitations to be included in a criminal definition of killing.
Despite the limitations of legal concepts, the most relevant practical consequence of
the criminalization was to foster the sensibility of justice professionals and induce better
statistics (Ávila, 2018; Corn, 2014). Peru and Argentina developed, after the criminaliza-
tion of femicide, a Femicide Registry, providing national statistics and promoting
research that generates evidence for developing prevention policies (Ávila, 2018;
Bertolin et al., 2020). In Brazil, the criminalization of femicide included this crime in the
National Strategy of Justice and Public Safety (ENASP), inducing priority of investiga-
tion and producing information on the resolution of cases (Ávila, 2018). It also induced
the creation of the Brazilian National guidelines on femicide, a document by UN Women
Brazil aimed to include a gender lens on criminal investigation and prosecution (Brazil,
2016). This document regulates the recognition of women’s (and relatives’) rights to the
truth, respect of memory, integral reparation, and protection during the procedure. The
proper formation of justice professionals to leave behind the old conservative mentality
is currently a major challenge.
Some feminists argue that the criminalization of femicide may induce greater visibil-
ity to gender violence, thus creating better statistics, social awareness and fostering the
implementation of prevention policies (Lagarde y de los Ríos, 2006; Quiñones, 2017;
Toledo Vásquez, 2014). Naming is a strategy to recognize using law as a symbolic coun-
ter-narrative (Machado, 2020), although Pasinato (2011) argues that a generalized num-
ber of women’s killings may have limited impact on policies since it would be more
productive to have disaggregated data on the context of the killings, and on race and
social status of victims, to induce tailored policies.
Others argue that the use of criminal law may drain the energy of the feminist move-
ment to strengthen the punitive approach, undermining the centrality of prevention
(Vasconcelos, 2015). Finally, some recognize that there is a contradiction between human
rights activism and demands for criminalization, proposing ‘to assume the contradiction
with caution’, since the criminal system is often the most available alternative, even
though it may also reproduce other forms of violence (Flauzina, 2016: 95). The creation
of crimes where only women may be the victims may reinforce the social prejudice of
women being victims per nature, reducing their empowerment (Corn, 2014; Toledo
Vásquez, 2014).
In Mexico, the criminalization of femicide created tension between two feminist
groups, those concerned to use law to raise social visibility on gender violence and the
other group of feminists who directly supported victims (Bertolin et al., 2020: 280). To
this second group, creating more laws is not necessarily the answer, since the existing
legislation on prevention policies was not fully enforced.
In Brazil, the original bill on femicide, proposed by feminist experts, used the same
penalty form of aggravated femicide. However, congressmen changed it to create new
72 Current Sociology 71(1)

causes of penalty elevation (Bertolin et al., 2020). Currently, most bills in the Brazilian
Parliament addressing gender violence have a punitive approach, proposing new crimes
and more penalties, without discussion with feminist movements (Campos and Jung,
2020). In Chile, Peru, and Argentina, the maximum penalty for femicide may be lifetime
imprisonment. This Brazilian movement comes alongside a moral crusade against the
so-called ‘gender ideology’, with anti-gender policies (Corrêa and Kalil, 2020). Just cre-
ating new crimes is an easy solution since it does not compromise the budget, but it may
create a smokescreen that transfers responsibility from the Executive to the Judiciary and
inflates conservative drifts.
The interdiction to consider the ‘violent emotion’ or ‘defence of honour’ to reduce
criminal accountability derives from recommendations of the international commissions
created by treaties on women’s rights (MESECVI, 2018: 11; CEDAW, 2017: item
29.c.ii). The definition of femicide as killing in these situations should lead to the recog-
nition that they are not less serious crimes. In Argentina, the femicide law specifically
interdicts the attenuation of penalty in cases of ‘violent emotion’, thus banning argu-
ments of ‘defence of honour’ (Bertolin et al., 2020). An important evolution took place
in Brazil, after the Supreme Court ruled it unconstitutional to use ‘defence of honour’
arguments in femicide jury trials (Brazil, 2021). These legal reforms and case law devel-
opments, banning sexist arguments, have the greatest potential for changing practices to
ensure a gender-sensitive procedural justice (Corn, 2014).
There are indications that criminalization may lead to better accountability and
gender sensitiveness. In Brazil, research indicates that femicides cases have a final
judgment 1.75 times more promptly than other homicides (Stemler et al., 2017) and
they have an average of 87% of conviction, representing the subtype of homicide with
the highest proportion of conviction (Brazil, 2018). A study in Brazil’s Capital docu-
mented a light increase in the prison penalty after the criminalization (Ávila et al.,
2020), even though increasing the prison penalty was not the main goal of the crimi-
nalization by feminist movements. Observation research on femicide jury trials in
Brasilia found ‘a modest turn in the performance of some of [the legal practitioners]
in relation to previous research, with a growing tendency towards a gender perspec-
tive, which was only catalysed thanks to the criminalization of feminicide’ (Pires,
2018: 7). Many countries have included clauses to restrict perpetrators’ rights to vic-
tims’ properties or children's custody as a secondary penalty for a femicide conviction
(MESECVI, 2018: 30).
Despite possible punctuated advances in punishment and sensitiveness, there are
numerous complaints on revictimization, reproduction of discriminatory arguments in
courts, and lack of support and backlashes (see Bertolin et al., 2020). Ávila et al. (2020)
documented that the relatives of deceased victims did not feel protected by the judicial
system in Brasilia nor had the opportunity to participate in the trial, indicating a punitive
rather than supportive approach.
After more than a decade of the first femicide laws in Latin America, this movement
did not decrease the rates of killings (UNODC, 2019: 12). Some argue that the increase
in statistics of women’s killings may be a consequence of greater sensibilization on gen-
der violence by justice professionals (see Bertolin et al., 2020: 156). Anyway, it indicates
that only criminal law is not enough to face the problem, requiring a comprehensive
range of prevention policies, from education, health, and social services to police and
Pasinato and Ávila 73

justice. The change of cultural norms that nourishes gender stereotypes and violent mas-
culinities is the way.
Regardless of all challenges related to the full implementations of femicide laws and
the following gender-sensitive guidelines, there is major recognition that the criminaliza-
tion of femicide has raised social concern on the issue and fostered the advocacy of
prevention policies. In some countries, as Peru, the criminalization of femicide came
before the edition of a comprehensive law related to the prevention and sanction of vio-
lence and discrimination against women (Peruvian Law n. 30,364/2015). In Chile, after
the criminalization of femicide in 2010, there was the creation of the Ministry of women
and gender equity in 2016, inducing several policies related to security and justice, as
well as a public discussion on how the media should address femicide cases avoiding the
reinforcement of gender stereotypes (Bertolin et al., 2020). In Argentina, after the femi-
cide criminalization, in 2015, there was a major protest in Buenos Aires, called ‘no one
less’ (Ni Una Menos) with thousands of women in the streets demanding the full effec-
tiveness of the gender violence prevention policies law, with due budget, better statistics
on femicides, and better support services for survivors. After protests, policies focused
on supporting the children of deceased victims were passed. The criminalization may be
seen as an important effort to promote the visibility of femicide in society and to the
recognition of women as subjects of rights.

Conclusion
The criminalization of femicide is considered a continuation of efforts to promote
gender equality and women’s human rights. It aims to denounce and deconstruct the
sexist system in which women are bodies available to be killed. Saying femicide is
criminologically different from homicide (in its causes and consequences) is a femi-
nist strategy to transform public policy and the treatment of women by the legal sys-
tem. ‘The omission in criminalizing femicide obstacles women’s access to justice’
(CLADEM, 2012: 113).
Beginning in 2007, 18 Latin American countries have criminalized femicide. All coun-
tries consider some form of intimate relations in the definition, only Costa Rica and the
Dominican Republic exclude nonintimate relations from the concept. Other countries have
broadened the concept to nonintimate relations. This study highlighted the main categories
used to define femicide in these contexts. Usually, it is included in the intimate femicide
concept: intimate partner, family member, and domestic relations. In the nonintimate femi-
cide, besides a generic clause of gender discrimination, most countries include a list of
exemplificative circumstances. Definitions reflect historic, social, and cultural contexts
that lead to the recognition of gender violence in these countries. However, the convergent
inclusion of intimate relations in the concept reveals the persistence of the private space
producing gender inequality, domination, and control over women.
This comparative law study may contribute to clarifying the breadth of general clauses of
nonintimate femicide in the region. A shared understanding of femicide may lead to better
counting and accounting for it. This category developed in the Global South has a pedagogi-
cal role and could also be expanded to comprise other forms of gender violence specific to
other parts of the world, such as female infanticide, related to sorcery accusations or armed
74 Current Sociology 71(1)

conflicts (Ávila, 2018). Despite resistance and backlashes, the criminalization of femicide
has produced a slow move towards a more gender-sensitive justice.
Only the criminalization of femicide, dissociated from fully enforced prevention poli-
cies, is ineffective to reduce women’s killings. This finding should lead to regard to the real
causes of gender violence, the discriminatory cultural patterns, rather than to treat only the
symptoms of the social disease. Special attention should be paid to not allowing the forces
related to the populist punitive discourse to take a free ride on the feminist agenda.

Acknowledgements
The authors acknowledge Dr Cristina Elsner, Prof. Glaucia Diniz, Prof. Sandra Walklate, and the
reviewers for their contributions to this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this
article.

ORCID iD
Thiago Pierobom de Ávila https://orcid.org/0000-0001-8163-5806

Note
1. All quotations without a specific reference onward refer to the statutes indicated in Table 1.

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Author biographies
Wania Pasinato is a sociologist, with PhD from University of São Paulo. She has extensively
researched on criminal justice, police violence, impunity, and violation of human rights. She works
as independent consultant on gender-based violence issues. From 2014 to 2016, she worked as
consultant for United Nations Women Country Office Brazil, coordinating the Brazilian National
guidelines on femicide. She is currently a research fellow at the research group on human rights,
democracy, and memory of IEA/USP and consultant for UN Women on violence against women.
She has contributed with media interviews, parliamentary public hearings, and teaching in forma-
tion courses on gender-based violence all around Brazil.
Thiago Pierobom de Avila is an Associate Professor in the PhD program of UniCEUB, Brasília,
and an affiliated researcher in the Monash Gender and Family Violence Prevention Centre and in
the Institute for Criminal Law and Science (IDPCC) of the University of Lisbon. He is a Senior
Prosecutor in the Office of the General Attorney of the Federal District in Brazil, leading a
Specialized Domestic Violence Prosecution Office. He is a member of several Brazilian National
boards in the gender violence field. He has extensively researched and worked in the fields of
gender violence, racism, and oversight of law enforcement.

Résumé
Le concept de féminicide est apparu dans le champ des études théoriques féministes qui
a influencé la réforme du droit en Amérique latine. Dix-huit pays de la région ont inscrit
Pasinato and Ávila 77

le féminicide dans la loi, suivant différentes dispositions légales, concernant les relations
intimes et non intimes. Cet article cherche à fournir une comparaison des définitions
juridiques du féminicide telles qu’adoptées dans les cadres juridiques latino-américains,
et à analyser les difficultés liés au recours au droit pour donner un nom aux meurtres
de femmes fondés sur le genre. La transposition du concept dans la loi peut avoir pour
effet de lui faire perdre en partie son potentiel dans la mesure où d’autres formes de
violence fondée sur le sexe peuvent être dissimulées dans une clause générale de «
préjudice lié au genre ». Cela peut également conduire à une reconnaissance limitée
dans le système juridique, celui-ci fonctionnant traditionnellement d’une manière
conservatrice où la responsabilité pénale individuelle a une capacité limitée pour lutter
contre la discrimination institutionnelle. Malgré les défis qui existent dans la région, le
fait d’inscrire le féminicide dans la loi a contribué à sensibiliser la société aux meurtres
sexistes. Cela a entraîné des améliorations dans les statistiques et attiré davantage
l’attention sur les politiques de prévention et le soutien aux survivantes et à leurs
proches. Néanmoins, les mouvements conservateurs actuels ont tendance à mettre
l’accent sur la seule approche punitive et vont de pair avec des réactions hostiles aux
politiques d’égalité hommes-femmes. Cette étude comparative entend contribuer à une
meilleure compréhension du concept dans la région.

Mots-clés
Amérique latine, définition, droit, féminicide, limites

Resumen
El concepto de feminicidio fue creado dentro del campo de los estudios teóricos
feministas que ha influido en las reformas legales en América Latina. Dieciocho países
de la región han tipificado el feminicidio en base a diferentes disposiciones legales,
en relaciones tanto íntimas como no íntimas. Este artículo tiene como objetivo
proporcionar una comparación de las definiciones legales de feminicidio adoptadas en
los marcos legales latinoamericanos y analizar los desafíos de usar el derecho para
definir los asesinatos de mujeres por motivos de género. La trasposición del concepto
al derecho puede tener como consecuencia una pérdida de su potencial, ya que otras
formas de violencia de género puedan quedar ocultas en una cláusula general de
‘prejuicio de género’. También puede conducir a un reconocimiento restringido en el
sistema legal, ya que tradicionalmente este sistema opera de una manera conservadora
en la que la responsabilidad penal individual tiene una capacidad limitada para abordar
la discriminación institucional. A pesar de los desafíos en la región, la criminalización ha
contribuido a aumentar la conciencia social sobre los asesinatos por motivos de género.
Ha conducido a mejoras en las estadísticas y ha favorecido que se preste más atención
a las políticas de prevención y apoyo a las supervivientes y sus familiares. Sin embargo,
los movimientos conservadores actuales tienden a enfatizar solo el enfoque punitivo
y conllevan una reacción violenta en las políticas de igualdad de género. Este estudio
comparativo pretende contribuir a una mejor comprensión del concepto en la región.

Palabras clave
América Latina, definición, derecho, feminicidio, limitaciones