Marginalizing and Stigmatizing a Person in Society Is a Crime: Crimes of Xenophobia, Psychophobia, Prejudice and Discrimination

By Author Giljonnys Dias da Silva 

 

In a democratic and plural society, the dignity, equality, and freedom of every individual must be respected and protected. Acts that marginalize or stigmatize a person due to their origin, mental health condition, race, gender, religion, or any personal characteristic not only violate ethical and moral principles but also constitute criminal behavior under Brazilian law. The Federal Constitution of Brazil (1988) and the Brazilian Penal Code establish robust mechanisms to combat xenophobia, psychophobia, prejudice, and discrimination — all of which are considered threats to human rights and social justice.

 

Understanding Marginalization and Stigmatization

 

Marginalizing a person means excluding them from full participation in social, economic, or political life, often based on stereotypes or unjust beliefs. Stigmatization refers to the assignment of shame, disgrace, or social disapproval to individuals or groups based on particular characteristics. When such attitudes are institutionalized or reinforced through systemic practices, they lead to inequality, exclusion, and in many cases, violence or abuse.

 

In Brazil, such practices become criminal acts when they violate fundamental human rights protected by constitutional and penal norms — especially when the actions are motivated by xenophobia (fear or hatred of foreigners), psychophobia (prejudice against people with mental disorders), or any form of discrimination.

 

Legal Framework in the Federal Constitution of Brazil (CF/88)

 

The 1988 Constitution, known as the "Citizen Constitution," explicitly promotes the principles of human dignity, equality, and the repudiation of discrimination in all forms. Key constitutional articles related to this theme include:

 

Article 1, item III – Establishes the dignity of the human person as a foundational principle of the Brazilian Republic.

 

Article 3, item IV – States that one of the fundamental objectives of the Republic is to promote the well-being of all, without prejudice of origin, race, sex, color, age, or any other form of discrimination.

 

Article 5 – Guarantees equality before the law for all citizens and affirms that any form of discrimination that impairs fundamental rights is unconstitutional.

 

Article 5, XLII and XLIV – Defines racism as an unbailable and imprescriptible crime, and mandates punishment for any actions by individuals or organizations that act against the democratic and pluralistic order.

 

These articles clearly prohibit any action that targets a person or group with the intent or effect of excluding, demeaning, or violating their rights.

 

Relevant Provisions in the Brazilian Penal Code and Specific Laws

 

a) Law No. 7.716/1989 (Anti-Racism Law)

 

This is the principal legal tool in Brazil for combating racism and discrimination. Originally focused on racial and ethnic discrimination, it has been expanded by subsequent laws to encompass other forms of prejudice.

 

Key points:

 

Article 1 criminalizes the practice of discrimination or prejudice based on race, color, ethnicity, religion, or national origin.

 

Law No. 12.288/2010 (Statute of Racial Equality) reinforces this framework by promoting affirmative actions and equal rights.

 

b) Law No. 13.146/2015 – Brazilian Law for the Inclusion of People with Disabilities (LBI)

 

This law addresses psychophobia — a term used to describe prejudice against people with mental or psychological conditions. Under the LBI:

 

Article 88 criminalizes denial of access to public or private services based on disability, including mental health conditions.

 

Article 4 guarantees equal recognition before the law and non-discrimination for all people with disabilities, reinforcing their full social inclusion.

 

c) Law No. 14.532/2023 – Amends the Anti-Racism Law to Include Other Forms of Discrimination

 

This law expands the definition of "racism" to include discrimination based on gender, sexuality, disability, age, and other factors, turning actions previously treated as slander or insult into crimes of racism, which are more severely punished.

 

d) Penal Code (Decree-Law No. 2.848/1940)

 

Although the Penal Code itself does not explicitly use the terms “xenophobia” or “psychophobia,” many of its provisions apply to such conduct when it leads to offenses against honor, dignity, or physical integrity, including:

 

Article 140 – Injury (Injúria): Offending someone’s dignity or decorum, particularly when motivated by prejudice.

 

Article 146 – Constraining someone through violence or serious threat, which may apply in cases of forced exclusion or humiliation.

 

Article 147 – Threat: When discrimination escalates into threats against life or integrity.

 

Xenophobia and Migration in Brazil

 

Although Brazil has a long history of immigration and multiculturalism, xenophobia — especially toward immigrants, refugees, and Afro-descendants from neighboring countries — has been growing in some areas. Brazilian law protects foreigners under the same constitutional guarantees as citizens:

 

Law No. 13.445/2017 (Migration Law) guarantees the rights of migrants, prohibits discrimination, and ensures their access to public services and justice.

 

Article 4 of this law reinforces the idea that xenophobic acts are incompatible with the principles of the Brazilian state and should be punished accordingly.

 

Consequences and Importance of Combating Discrimination

 

The criminalization of acts rooted in prejudice and discrimination is fundamental to ensure a society that values diversity, inclusion, and human rights. When a person is stigmatized, excluded, or attacked because of who they are, this does not only harm the individual — it destroys the social fabric and undermines democracy.

 

Brazilian courts have increasingly adopted a more protective stance in these cases, recognizing structural discrimination and promoting measures for restorative justice, awareness, and social reparation.

 

In conclusion, to marginalize and stigmatize a person in Brazilian society — whether through xenophobia, psychophobia, or any other form of prejudice or discrimination — is not only morally wrong but legally punishable. The Federal Constitution, the Brazilian Penal Code, and specific human rights and anti-discrimination laws provide strong legal tools to fight against these practices and protect the dignity and equality of all people.

 

To build a more just and inclusive society, it is essential that these legal standards are not only known but also enforced, with public policies, education, and civic engagement working together to eliminate discrimination in all its forms.

 

Bibliographic References 

 

Barroso, L. R. (2019). Curso de Direito Constitucional Contemporâneo: Os Conceitos Fundamentais e a Construção do Novo Modelo. São Paulo: Saraiva.

 

An essential reference on constitutional principles such as dignity, equality, and fundamental rights in Brazil.

 

Silva, J. A. G. (2018). Curso de Direito Constitucional Positivo (42ª ed.). São Paulo: Malheiros.

 

Covers the application of constitutional norms and their interpretation regarding human rights and anti-discrimination.

 

Dallari, D. M. (2017). Elementos de Teoria Geral do Estado (34ª ed.). São Paulo: Saraiva.

 

Discusses the role of the State in guaranteeing rights and protecting vulnerable populations.

 

Nader, P. (2020). Introdução ao Estudo do Direito (19ª ed.). Rio de Janeiro: Forense.

 

Provides an overview of Brazilian legal principles, especially those related to individual and collective rights.

 

Cunha, R. P. da & Nohara, I. L. (2019). Direitos Humanos e Fundamentais: Teoria, Normatividade e Aplicabilidade. São Paulo: Atlas.

 

A comprehensive guide on human rights protections, including anti-discrimination laws.