Introduction

If the humanities has a future as cultural criticism, and cultural criticism has a task at the present moment, it is no doubt to return us to the human where we do not expect to find it, in its frailty and at the limits of its capacity to make sense.

(Judith BUTLER, 2004a, p. 151)

Although in purely normative terms vexatious intimate body searches of women visitors to prison facilities constitute an exception, they are regularly practiced by correctional officers, and endorsed by prison directors, who argue that they are complying with the necessary security requirements for these locations. Although the practice is conducted on visitors of both sexes, vexatious intimate body searches affect women more significantly, considering that they are the majority of visitors to prisons. The way that these searches are conducted subjects women to distressing situations, since in most cases they must expose their naked bodies, even in front of their sons and daughters, forcing them to perform uncomfortable and humiliating movements, like squatting on top of a mirror, to expose the genitalia to correctional officers.

Public authorities justify vexatious searches as a way to prevent the entrance of prohibited objects into prison facilities. However, a study conducted by the Rede de Justiça Criminal [Criminal Justice Network], based upon documents from the Secretariat of Penitentiary Administration of the State of São Paulo, demonstrated that only .03% of visitors carried items considered to be prohibited, or three visitors out of every ten thousand,⁹ and in none of the cases was an attempt to enter with weapons registered.

Vexatious intimate searches are even more unreasonable considering that they can be conducted electronically. This issue is the subject of Projeto de Lei [bill] 7.764/2014 (^{BRASIL, 2014}), which aims to alter the Lei de Execução Penal [Penal Code] to determine that personal searches be conducted with electronic equipment. Although the proposed law is not exactly innovative, considering that some Brazilian states already have regulations that curb vexatious intimate searches, the practice is still conducted in prisons, which argue that they cannot afford electronic equipment, and repeatedly assert the need to maintain security.

This public stance compels an analysis of the reasons that this degrading practice against women visitors to prison facilities continues. Legal research about this practice commonly focuses on the violation of human and fundamental rights, including the dignity of the human individual, the protection of the right to privacy, honor and personal image. We can see this viewpoint in the Federal Supreme Court decision that recognized its Repercussão Geral [General Repercussion] (Topic 998) (BRASIL, 2018), emphasizing the need to analyze the “illegality of intimate searches conducted within the prison system,” since it involves a constitutional issue that is relevant “to bring to light the existence of vexatious, inhuman and degrading practices and regulations.”

The Supreme Court’s approach is important; however, we ventured to go beyond this analysis of the topic from the common vantage point of human dignity, to question whether the people who visit prison facilities and are subjected to vexatious intimate searches, especially women, are considered by socially recognized norms as being human, because, if they are not even considered as recognizable human lives, then discourse about dignity does not apply. This is done by analyzing the problem from the perspective of critical criminology and then by using Judith Butler’s gender studies and recognition theory.

Using a critical criminology viewpoint, the vexatious search of women visitors in prison facilities is analyzed considering the broader context of exclusion and denial of the human condition, not only of those entering the prison system, but also of people who maintain family or emotional ties with them - the extension of the figure of the enemy in the penal system. The article also analyzes the violation of the constitutional principle of the individuality of the sentence (article 5, XLV, Federal Constitution of 1988) (^{BRASIL, 1988}), because female visitors to prisons, who have emotional ties with incarcerated people, suffer bodily from the extension of the state’s punishment.

Beyond this legal approach, the theme is then analyzed considering the theoretical perspective of social recognition developed by Judith ^{Butler (2009}; ²⁰⁰⁴a) - especially in the works Frames of War: When is Life Grievable? (2009) and Precarious Life: The Powers of Mourning and Violence (2004a) - to verify how the framing of a livable human life occurs in our society. We intend to demonstrate that framing as human is realized through a reiteration of the norms that constitute subjects and determine what and who is a human life and even what life is livable and grievable.

Although other theories could be used to analyze this topic, we adopted a Butlerian perspective since it helps demonstrate how persons are constituted and social relations form in accordance with norms that previously establish which lives will be human and recognizable as livable lives. In other words, more than merely a subjective approach to the constitution of subjects - from a psychoanalytic and recognition theory perspective - Butler manages to align these perspectives to the objective reality of the power relationships that are constitutive of subjects and of the norms that establish the framing of who will be recognized as human.

Thus, through an analysis of the concrete situation of vexatious intimate searches of women visitors in Brazilian prisons, Butlerian theory reveals the subjective (subjectification) and objective (performativity) aspects of gender violence perpetrated in this practice and to identify subversive possibilities of norms that frame lives so precarious that they do not merit the status of livable and grievable life.

The corporal punishment of women visitors in prisons

Brazilian penitentiaries and prisons are where sentences involving the loss of liberty in a closed prison regime are served,¹⁰ and also have custody of provisionary prisoners (artigo 87, caput, e parágrafo único, da Lei 7.210/1984 - Lei de Execução Penal) (^{BRASIL, 1984}). This is the most important portion of the punitive penal system, fundamentally based upon the expiatory response to the commission of a criminal offence, since the architectural design and disciplinary model of these spaces, which are types of total institutions, insert individuals into a reality completely different from that experienced outside of prison. They are called total institutions because the most important part of an individual’s daily activities is conducted in closed space (Eugenio Raúl ^{ZAFFARONI, 2002}).

Notwithstanding theoretical efforts to attribute sentences involving the deprivation of liberty in a closed regime to positive preventive ends, especially resocialization, atonement is at the origin and core of the deprivation of liberty - involving penitence, purification, and compensation for the error committed, through suffering. Beyond mere retribution for the gravity of the wrongdoing, that is, punishment and expiation, it can be said that prison sentences served in most Brazilian prisons meet a perverse socioeconomic demand, in which the state renourishes criminality (Alessandro ^{BARATTA, 2019}, p. 183-184).

Thus, the state, by imposing prison sentences, does not fulfill the mythical task of resocialization and, more than this, as Augusto Alvino de ^{Sá (2007}, p. 112) emphasizes, “it specifies, formalizes and consecrates a relationship of antagonism between the convict and society,” beginning with the practice of criminal conduct:

By committing a crime, the individual concretizes a confrontation with society. By penalizing them with prison, the state concretizes the antagonism between him and society. His “recuperation” will be a recuperation for society, that is, it will be a social reintegration, and will only be possible through the resolution of this antagonism and by overcoming this confrontation. On the one hand, therefore, the prison sentence brings, as a consequence, the escalation of the confrontation and antagonism between the prisoner and society, through the effects of imprisonment. On the other hand, the social reintegration of the prisoner will only be viable through the elective, technically planned and assisted participation of society and the community.

But the negative effects of incarceration, both those related to poor administration of a public institution, which stems from a lack of political interest in the humanization¹¹ of prisons, as well as the inherent effects of the privation of liberty itself (^{SÁ, 2007}), are not restricted to the individual upon whom directly falls the execution of the sentence. Imprisonment affects the entire community in which an incarcerated individual is inserted, especially those persons who have close ties with the individual.

In this context, this study highlights women who maintain a personal bond with prisoners, especially mothers, wives, companions, girlfriends, and daughters, and who frequent the prison establishment on regular legally entitled visits, since, as mentioned, the majority of visitors are women (Helena Salgueiro ^{LERMEN; Martinho Braga Batista e SILVA, 2018}) and, as such, are the victims of a specific gender violence, consistently present in vexatious intimate searches.

In the Brazilian prison system, visitors must undergo a search procedure, a personal inspection, to prevent the entry of objects not allowed in these spaces and which could jeopardize the security of the locale, pursuant to article 3 of Law 10.792/2003 (^{BRASIL, 2003}). In an insipient way, this measure requires penitentiary facilities to acquire and use metal detectors, but does not provide details regarding personal search procedures, which leaves room for abuses, such as the practice of vexatious intimate searches. One example is the procedure for searching visitors to prisons in the state of Paraná, which is governed by the guidebook to security procedures in penal facilities in Paraná.¹² For those visiting inmates the vexatious intimate searches, called “searches for visual verification”, are conducted in the following manner (José Roberto Rodrigues ^{SANTOS, 2011}, p. 89-90 ):

6.3.6.1 Search procedures for visual verification

The prison official should ask the visitor to:

a) stand in front of the prison official and remove clothing and shoes, leaving on just underwear (if no irregularity is noted, go to the next item);

b) sit on the metal detector stool and, if it detects any irregularity, inform the immediate supervisor to take action;

c) pass and/or pat hands on the hair, covering the entire head, and if a satisfactory view is not possible (for example, the nape of the neck), ask that they lower the head, throwing the hair forward, and then, again, pass and/or pat hands through the hair, over the entire head;

d) open the mouth wide and lift the tongue, examining them;

e) stand on the side to check ear openings and behind the ears;

f) tilt the head back to check nostrils;

g) raise arms to check armpits;

h) open hands and separate fingers, checking them on both sides;

i) if applicable, lift body folds, and if female, the breasts;

j) if no irregularity is noted, ask that they remove the underwear;

k) if male, lift the scrotum for verification, as well as the penis (if necessary, including the entire glans);

l) lower the mirror;

m) place one leg on each side of the mirror;

n) squat, slowly, three times facing front, if male, and three times facing back, if female, in both cases, remain squatting for about 10 seconds;

o) remove the mirror;

p) put on underwear;

q) stand with their back to the correctional official and, bending the knees, show the soles of the feet so they can be observed, as well as the spaces between the toes;

r) go to the side to verify that they are not hiding anything that may have been thrown on the floor before or during the search;

s) put on remaining clothes and shoes.

Additionally:

a) in female visitors, when they are using tampons or sanitary napkins, ask them to change them for one provided by the facility;

b) examine the removed clothing, in accordance with article 6.7.3, letter “i”;

c) examine the removed shoes, in accordance with article 6.7.3, letter “j”;

d) verify if the visitor uses a prosthesis so that it can be examined, in accordance with article 6.7.3, letter “k”;

e) use metal detector on the person searched, and/or X-rays on clothes, shoes or objects the person is wearing, as needed (emphasis added).

The description transcribed above of the intimate search or visual verification procedure unequivocally demonstrates its vexatious and invasive nature to the privacy of visitors to prisons. This form of inspection, in addition to being ineffective at impeding the entrance of prohibited objects, fosters abusive conduct by correctional officers (Pedro Austin ^{ALVES; Aline ALBULQUERQUE, 2015}).

Having noted the problem, it is necessary to ascertain, initially in legal terms, the normative violations inherent to this practice so that they can be definitively curbed. This analysis, aligned with questions of gender, is oriented here from a critical criminology perspective, so that, in legal terms, it can reveal that the procedure for vexatious intimate searches constitutes an illegal and inadmissible extension of the criminal sanction to women who maintain emotional ties with incarcerated individuals, violating the constitutional principle of the individuality of a sentence, consecrated in article 5, XLV, of the Federal Constitution of 1988 (BRASIL, 1988).

According to this principle, penal sanctions cannot extend beyond the condemned individual, the author or participant of the criminal offence, reaching, for example, their family or any other third party, because the punishment is imposed on the basis of individual culpability, on the individual considered as a being responsible for their own actions (José Eduardo ^{GOULART, 1994}; Luiz Regis ^{PRADO, 2019}; René Ariel ^{DOTTI, 2018}). Affirming the individuality of the sentence removes the possibility of punishing an individual for unconnected events (Eugenio ^{CUELLO CALLÓN, 1953}). It should be noted that the principle of individuality or personal criminal responsibility has two more dimensions, in addition to the prohibition of imposing a punishment on third parties unrelated to the crime. There is also: “restriction of criminal responsibility to the author of the typical action or omission; denial of any form of objective criminal responsibility (sine culpa) or that of solidarity” (Salo de ^{CARVALHO, 2018}, p. 263).

Thus, the principle of the individuality of a sentence aims to curb the extension of the afflictive character of the criminal sanction of loss of liberty to third parties who are not responsible for the crime. In this manner, vexatious intimate searches can be understood as a consequence of the privation of liberty punishment being applied to another, in violation of the principle in question, since it is a corporal insertion, that is, a state action that falls upon the bodies of visitors to prisoners.

It can be argued that vexatious intimate searches are not effectively a criminal sanction, but rather a control or security mechanism of prisons and those under custodianship. However, what actually underlies this execrable procedure is the corporal punishment of those who maintain emotional ties with prisoners, mainly mothers and companions, fulfilling a dual function: a) to secondarily penalize the mothers and companions of incarcerated people, since, in a phallocentric society, it is believed that they had failed in their traditional feminine mission to provide moral support to their sons, daughters and companions; and b) discourage visitation and maintenance of the emotional bond and contact with the person deprived of liberty with the external environment, since the prison must eliminate as much as possible the human coefficient from the subject - who has been marginalized and selected to not live.

The selectivity of the penal system has always been an object of study in criminology, especially critical criminology. According to Zaffaroni, to identify an individual as an enemy, which reflects the selectivity of the penal system, implies denying this individual the very condition of being a person (^{ZAFFARONI, 2019}). In this sense, the punishment of the privation of liberty is one of the instruments of power created and used to eliminate (through destruction or death) the exception (the enemy) constituted by the power itself. As Achille ^{Mbembe (2003}, p. 16) explains: “power (and not necessarily government power) continually refers and appeals to the exception, the emergence and the fictional notion of the enemy. It also works to produce the same exception, emergence and fictional enemy.” Therefore, it is not only a matter of selecting those who are or are not possessors of positive individual guarantees (like the principle of individuality of punishment, the right to privacy and honor). In fact, “it is not the quantity of rights that someone is deprived of that nullifies their status as a person, but rather the reason upon which this deprivation of rights is based” (ZAFFARONI, 2019, p. 18). In the case of the incarcerated individual, at whom the selectivity of the penal system is directed - the enemy - their human condition is denied to them because they are considered a dangerous being.

Women visitors to Brazilian prisons and penitentiaries, considered accomplices in the crime committed by their companions or sons, or at least colluders, are, by extension, considered enemies of society or strangers. It is a project of personal annihilation based on race and class discrimination (Juliana ^{BORGES, 2019}) that from a gender perspective, also reveals a form of institutionalized gender violence.

Given the relevance of the problems faced by women visitors to prisoners, it is important to emphasize that the discussion about the unconstitutionality of vexatious intimate searches reached the Federal Supreme Court (STF), which recognized the Repercussão Geral [General Repercussion] in the following terms:

CONSTITUTIONAL. PENAL. INTIMATE SEARCH TO ENTER PRISON FACILITIES. VEXATIOUS PRACTICES AND RULES. PRINCIPLE OF THE DIGNITY OF THE HUMAN INDIVIDUAL. PRINCIPLE OF THE PRIVACY, HONOR AND IMAGE OF PERSONS. OFFENSE. ILLEGALITY OF EVIDENCE. RELEVANT ISSUE FROM A SOCIAL AND LEGAL STANDPOINT. RECOGNIZED GENERAL REPERCUSSION. The adoption of vexatious practices and rules related to the intimate search for entrance to prison facilities is a constitutional theme worthy of being submitted to the general repercussion classification (BRASIL, 2018).¹³

This involves an extraordinary appeal, presented in response to the decision by the Court of Justice of the state of Rio Grande do Sul, which rejected an extraordinary appeal filed by the Public Ministry [state attorney] against the ruling of acquittal by that court. In the judgment, the court acquitted a woman accused of drug trafficking because the proof obtained by means of vexatious intimate search was determined to be illicit, violating the principles of dignity and privacy.

It is worth mentioning that the federal Superior Court of Justice (STJ) timidly affirmed the illegality of vexatious intimate searches, when questioned regarding the legality of the proof obtained by this procedure, ruling out the unconvincing and fallacious argument that allows the right of security to prevail:

SPECIAL APPEAL. DRUG TRAFFICKING. INTIMATE SEARCH. ILLEGALITY OF EVIDENCE OBTAINED. APPEAL DENIED. 1. The accused was subjected to an intimate search based solely upon an anonymous accusation, on the day in question, to the prison informing them that she would try to enter the prison with drugs, without carrying out, apparently, other inquiries beforehand to support the veracity and plausibility of this information. 2. In this case, there was only an “anonymous accusation” regarding possible trafficking committed by the defendant, which, therefore, by itself was inadequate to establish well-founded suspicions to justify conducting an intimate search. 3. If there were no well-founded suspicions for the execution of a search of the accused, it is not possible to admit that the mere finding of a flagrant situation - the location of a narcotic substance in the interior of the vagina (45.2 grams of marijuana) - after the search, justifies the measure, under penalty of depriving the individual their constitutional right to privacy, honor and image. 4. Despite the possible good faith of the corrections officers, there were no objective and rational elements that would justify conducting an intimate search. For this reason the evidence obtained through the invasive measure is illegal, as well as all others deriving from it (by virtue of the theory of the fruit of the poisonous tree), which determines the acquittal of the accused, for lack of material evidence of the crime. 5. Special appeal not granted (BRASIL, 2019).¹⁴

In terms of the relevance of this decision, it is essential to discuss the issues that underlie the very existence of this vexatious and invasive procedure. In the case referred to above, the legal discussion in the federal Supreme Court of Justice (STJ) was limited to an assessment of the evidence obtained from the search, and its illegal execution, because it was based on an anonymous accusation. But, by affirming that “there were no objective and rational elements that justified the execution of an intimate search,” the judge issued a value judgment: it would be possible to justify conducting vexatious intimate searches in other circumstances. We understand, however, that no “objective and rational elements” exist capable of legitimizing this procedure.

Although the judgment of the Supreme Court of Justice has not been concluded, there is a tendency of that court to permit, in some situations, intimate searches, according to the thesis signed in a dissenting vote by Judge Alexandre de Moraes:

The intimate search for entry into prison facilities will be exceptional, properly motivated for each specific case and will depend upon the visitor’s consent, and may only be conducted according to pre-established protocols and by persons of the same sex, who must be doctors in the event of invasive exams. Excess or abuse in the use of the invasive search will result in the public official or doctor being held responsible and the illegality of any evidence obtained. In case the visitor does not agree, the administrative authority can prevent the visit from taking place.

Considering the concrete case presented above, it is clear that the issue of vexatious intimate searches cannot be limited to a merely formal legal analysis regarding the illegality of evidence, as done by the Supreme Court of Justice (STJ). It is necessary to expressly recognize that the procedure is invasive, degrading and humiliating, as well as unnecessary, since there are other ways to identify the entrance of any illicit object into prisons - for example, the use of electronic means, an issue addressed in the next section. The insistence on the use of vexatious intimate searches, even as an exception, in the general terms proposed in the thesis being voted on by the Federal Supreme Court, constitutes an extension of the prison sentence applied against the convict, to women with whom they had personal conviviality, companions and family members, in clear violation of the principle of the individuality of the sentence. Their bodies and privacy end up belonging to the state as much as the bodies of their incarcerated partners.

Conclusion

In light of the analysis conducted in this study, it is possible to conclude that vexatious intimate searches of women visitors to prison facilities are not really mechanisms for the control or security of these places. What actually underlies the vexatious procedures adopted is the corporal punishment of those who maintain emotional ties with persons who are condemned or accused of breaking the law - mainly mothers and companions. It follows that the vexatious intimate searches to which they are subjected constitute an illegal and unacceptable extension of the penal sanction to women who have emotional ties with inmates, violating the constitutional principle of the individuality of the sentence.

Faced with the institutionalized violence experienced by these women, this study seeks to establish a critique that goes beyond the more common analyses of the topic conducted in legal studies, that is, from the perspective of human dignity. Going beyond this popularly accepted position found in legal debates about the problem of vexatious intimate body searches of women visitors in prisons, we apply categories developed by Judith Butler in her social critique and theory of recognition to unmask the logic of the subjectification process and of the social norms of recognition that confer support to the corporal punishment of these women. This alternate approach proposed in this study is based on the fact that these women are denied any possible recognition of their lives as being dignified, or, in a broader sense, are not even recognized as humans in Brazilian society.

This proposed analysis is based upon theoretical categories developed by Judith Butler, since they allow the verification of how power relations, which constitute individuals, establish the limits of intelligibility and recognition regarding what is considered normatively human and which lives are livable and grievable.

Thus, we used the concept of performativity presented by Butler to elucidate the complex process of the constitution of subjects through the reiteration of compulsory norms, which are representative of power relations, and that establish the limits of what will be considered an intelligible formation of the subject within a given historical context. In this process, power relations operate through what are called framing norms to determine beforehand who counts as a human life and which lives will be livable and grievable, which denotes the performative character of the human in our social reality.

These framing norms employ, on the one hand, schemas of intelligibility to decide, in advance, who will be considered human and, on the other, the frames of recognizability to establish which lives will have access to the conditions of a livable life and which lives will be denied this access and will be lost without grief.

In turn, these frames of recognition and schemas of intelligibility are based upon two other concepts: precarity and precarious condition. The first concept, precarity, represents the common human vulnerability that arises with life itself, that is, from the beginning of life people need interrelationships for survival, which means that they are vulnerable to the violence of those upon whom they depend. In this way, all life is precarious, but not all life will be considered human and recognized as livable and grievable. This stems from the fact that the vulnerability of life creates the dependence of the subject upon others to guarantee the minimal social, political, and economic conditions to enable their existence. The absence of these conditions implies what Butler calls a precarious condition.

Thus, it can be asserted that life is precarious because everyone is vulnerable; however, some will be recognized as livable lives and will have access to conditions that ensure their existence; others will not be recognized and will be denied these conditions, becoming ungrievable lives; while still others, brutally, will not even be considered human. This framing process applies perfectly to women visitors to prisons, because the institutionalized violence to which they are subjected reduces them to less than human, completely draining away the very condition of existence and grievable life.

Therefore, the answer to the problem that gave rise to the analysis of this work, is that the lives of these women are not intelligible; according to the rules of framing they are not considered human lives, since they are involved in some way with lost lives, that is, with the incarcerated. Consequently, all these lives considered as non-human, of these women and these inmates, do not deserve, according to the frames of recognizability, to have access to the minimum conditions for a livable life. They are treated as less than human, or, in fact, are not seen at all.

Therein lies the importance of publicizing, exposing, and unmasking this barbarity that classifies lives as human or non-human and, even, as livable, and non-livable. It is necessary to question these framing norms, since they can be changed, according to Butler’s subversive proposal. According to this perspective, since it involves a performative process - that is, the constitution of subjects, which is never definitive, complete and stable - gaps open up that represent the constitutive instability of the constructions. Given that in this continuous and instable process the subject assimilates, questions and re-signifies these norms, gaps open up for processes to subvert the oppressive logic of power relations. Since theory and practice are intertwined, this deconstruction, in the theoretical field, can also contribute to the cessation of the practice of vexatious intimate body searches of women visitors in prisons by pointing out the subversive possibilities of the framing norms and allowing individual and collective mobilization, in the practical field, of the agency of people excluded from the condition of being human in our society.

Thus, in the Butlerian proposal, it is not a matter of replacing a set of idealized norms to comprehend the human, but of regaining a sense of ethical indignation, and revealing a dehumanizing norm that restricts the perceptible, by critiquing its inherent violence because it denies the conditions for a livable life.