4.2-A atuação das Comissões de Ética, Ouvidorias e Correg no enfrent do assédio-Gilberto Waller

Hello, my name is Gilberto Valles, I am a federal prosecutor. I am in charge of the prosecutor's office of the Federal Prosecutor's Office. The idea today is to talk to you about the importance of hearing and correction in the fight against harassment, in the fight against sexual harassment, among the autarkies, foundations and in the entire federal public administration.

When we talk about combating harassment, we have to verify that this is a new issue that arises for the public administration. In the past decade, the subject of harassment was not brought as one of the elements to be dealt with by the hearing and the hearing aid. That's why there's evolution, that's why we need to talk, that's why we need to think differently about these types of irregularities.

The hearing and hearing aids were used to check irregularities in which the whole society suffered a damage, but you didn't have an individualized person, you couldn't identify someone specific who was the victim of disciplinary infraction.

It was a case, for example, of illicit enrichment, of unfinished work, of overpaid work. Of course, the whole society was the victim, but the biggest victim was the public administration, the Brazilian State. In cases of sexual harassment, we deal with disciplinary infractions, even criminal infractions, in which, in addition to the State, in addition to the public administration,

we have a victim, a physical person, a victim with feelings, a victim with consequences, that brings consequences of that act, a victim that will carry the macula of that disciplinary infraction for the rest of your life.

That's why we have to think of a different hearing. The hearing is the channel that will receive the complaints from the Federal Executive. It is responsible for receiving, for bringing this victim to be able to speak with the public administration. However, we have to verify that the importance of this hearing in the reception of the victim is fundamental.

Sexual harassment, unlike other types of infractions that we are used to dealing with, is not detected by auditory channels, by channels of self-proclaimed controls. To detect a case of sexual harassment, you necessarily need the collaboration of the victim. You need the victim to come to the State and collaborate for the confrontation of the harassment.

The victim is the biggest collaborator of the State in the fight against harassment. The victim is a partner of the State in the improvement of the public administration in this matter of combating harassment. For this, we need a hearing that has a qualified listening, that deals with empathy,

The hearing is used to receiving complaints, complaints, praises, requests, suggestions, and complaints of enormous or various irregularities. But in the case of harassment, I need this hearing to have a qualified listening, a differentiated listening, a special listening.

When I hear the victim or the denouncer in the case of sexual harassment, I have to remember, mainly, that this victim, until she gets to the hearing, she has gone through some barriers, some barriers almost unbearable for a human being. The first barrier she ends up facing is the recognition on her part that she was a victim of a harassment.

Because it's normal for the victim to initially refuse this situation, not to believe, to ask herself if that really happened, if that situation would really set up an assault.

It's not the first case, it's not the first situation that she runs to file a complaint for harassment. Harassment actually has to happen and the victim has to recognize that situation. She has to actually realize that she is the victim of an abuse.

After the first barrier, which is already difficult, we see that the second barrier is the repercussion that she will have at home, with her family, with her husband, with her wife, with her children, with her parents. What will they think? What will they think of this situation that she narrates?

And in this aspect, we have to be careful, because, many times, the fear is of judgment, of accusation, it is also that of

And then we will verify that many times the victim will tell, she will narrate a situation and she is judged, but you also saw the clothes you were in, but you also don't know how to behave, but you also made it possible, but everyone warned you, but you also didn't have the precaution, but you also

And this "but" is also a judgment, and this judgment interferes with the victim to file the complaint, to seek the Brazilian State to be able to improve that irregularity.

After this situation, these two layers, we have a third layer, which is the judgment of your colleagues, of your peers, what they will say, what they will imagine, what they will think.

And it's also the "but also". But also you know about fame, but also you know that it's dangerous there, but also how you let yourself get into this situation, but also you didn't react, but also... This "but also" is the judgment that often prevents it.

And in this we verify for years that several and several victims of harassment, they can not overcome these three barriers, they can not overcome the necessary barriers to seek the State and seek the collaboration of the control bodies to punish, sanction, give a stop to the conduct of harassment.

We see that this importance of encouraging the victim is fundamental, because when she makes the complaint, when she can jump these three barriers, she doesn't do it just in her own name, she does it in the name of a

a large number of people who were victims and were unable to overcome these barriers. It is normal that the cases we follow by the press or the cases that have already reached the correction office, the hearing, that when the publicity is given to the fact that an assault case is being rushed,

effectively encourages several people who were victims of harassment to file their complaint, to seek a state, to recognize that that situation is harassment, and to seek the state for an adequate sanction, for a "enough" in that situation.

So it's essential to bring the victim's person. But if we bring it to the hearing, we have to remember that the first situation, the first clash, the first way of contacting the victim with the hearing can't be pre-judgment.

That's why we need to have a situation where listening is qualified. I have to listen, I have to collect elements, I have to verify everything that actually permeates the harassment situation, because it is fundamental in my judgment, it is fundamental in my purification. I have to encourage it. And the first situation of encouragement is the question of empathy, of mirroring.

I need, necessarily, that whoever is going to listen to it has empathy, but this empathy is not just about being supportive, being, in fact, against that practice. Empathy is often the mirroring, the person feeling the will to speak.

And in this aspect, I usually say that, changing a little the understanding of hearings as a single channel, a hearing, to be empathetic in a case of harassment, it has to be prepared. If it is a harassment practiced against a woman, it is much better for this victim to speak to a woman than to a man. Not that the man does not solidify, not that the man is not technically

competent to do that. It's because, many times, this male figure, she can't reach the situation experienced by a woman. I usually say that I, as a man, when I leave home and go to work, I never thought about what clothes to put on so as not to be a victim of harassment, so as not to say what they will think of my person. I never thought

a party at the end of the year, I thought I couldn't be the last one to leave or stay at the table near someone or a cyclist,

because that could be harassment. I never thought as a man that I should, at the end of the file, think that I can't be alone in my office with A, B or C, because that could be a subject of harassment. This is not part of our lives, this is not part of our reality, and this brings us some impacts, some prejudices, something that we can't effectively

to collect, something that we can't assimilate in a quiet way. That's why the question of mirroring, that's why the hearing has to be technically prepared to listen to it, but also the question of mirroring, the question of being something similar, someone who understands and doesn't judge. If you do one more, if the victim realizes that she is being judged,

It blocks, it recoils, it realizes that it will not have consequences. I have to encourage it. And this encouragement is very important, because our law is fragile when it comes to protecting the denunciant. It is omissive when it comes to protecting the denunciant. Today, in the Federal Executive Power, we have three instruments, three institutions that somehow protect the denunciant.

The first institution is anonymity, you can make an anonymous complaint, which in this case has even its own denomination, which is irregularity communication. But the anonymous complaint, in the case of sexual harassment, it has no validity, it has no value, it has no weight, because sexual harassment has to be directed at someone.

If this person doesn't confirm, doesn't claim that they were victims of harassment, I can't sue them. If they say they were caught but they were allowed to, if they say that exchange was a joke, that it had no sexual connotation, I can't invest in a lawsuit.

So, the issue of anonymity is fragile. The second form of protection is pseudonymization. It is the possibility of the complaint being identified, you unidentify it, anonymize it, or remove any element of identification.

This case will not go ahead either. Although I can open an appuratory process, a punitive process, when, of the eight people, of the supposed victims, I need someone to confirm that they were victims of harassment. I need someone to speak, someone to demonstrate, someone to show that they are victims of harassment. In this case, this protection is also not practical.

The third element of protection, which is perhaps the most important and which is still less used, is the possibility that was brought in Decree 1053, the possibility of the General Corregidory of the Union, the Corregidory of the State University, the Corregidory of the PGF, to adopt protective measures, measures of non-retaliation. It is you undoing the act that was done, it is the possibility of you repairing that damage that is being done.

How many times does the denunciant make the complaint and is exonerated from the commission? How many times does the denunciant make the complaint and is not promoted? Is not promoted?

can't reach the post he was waiting for, can't get that training, that course, and the correction is fit to heal this situation. In addition to the purification of the case of harassment, in addition to the issue of abuse, of the measure, it protects the victim, it removes that malefic measure in relation to the victim. Well, if we managed

If we have the elements, if we have the hearing, if we have the report, we move to another point, which is the correction, to the puratory area. And in this puratory area, we also have some situations that we have to worry about.

A disciplinary process serves to ensure broad and contradictory defense, but it serves to apply a sanction. It is a consequence of the act done, and this consequence has to be quick, fast, effective and proportional.

For us to have this, the biggest proof we have in a harassment process is the victim's speech, it is the victim to manifest, it is the victim to speak. And as it happens in the hearing, in the case of disciplinary process commission, I have to be careful with the composition of the commission. I have to, in fact, bring a quiet, empathic environment

of mirroring so that the victim herself feels calm when reporting the facts. Then we have to be careful in the composition of the commission, that I have, if it is an assault against a woman, that I have at least one woman in the commission to listen to her, to be able to mirror, to be able to actually be an empathic situation.

Another situation we have, even if we hold a broad and contradictory defense, is to effectively remove the physical presence of the accused in the victim's testimony. This visual contact inhibits, victimizes, commits another pain to the victim.

The interesting thing about the processes involving sexual harassment is that the accused may exercise his right to contradict via videoconference. Via video and preferably with a turned off monitor, so that you don't have the issue of reactions, faces, ways, three ways in which it is done when asked.

Another concern we have to have with the victim, with that person who is collaborating to clear the case of harassment, is that the questions, necessarily, in a case of harassment, cannot be done directly from the accused to the victim. They, preferably, have to be done by the defender, and more importantly, they have to be mediated, they have to be

through the president of the commission. This president of the commission, fundamentally, what is he going to do? He is going to remove adjectives, remove situations that can constrain the victim.

It's common, in a victim's testimony, knowing that the fundamental proof, the primary proof, the most important proof in a disciplinary process of harassment, the accused, instead of defending himself from the facts, showing that that fact didn't happen, that he didn't grab her, that he didn't send the message, that he didn't do a certain act, instead of defending himself, he accuses. He actually tries to disqualify the victim.

accuses the victim saying that it was she who provided, it was she who incited, it was she who incited that irregular act. In this case, the president of the commission, of course, can ensure ample contradictory defense, but filter, filter the questions so that they are not offensive, so that they are not, in fact, somehow constranging.

In this aspect, from the victim's testimony, we have another situation, also more serious. Is it common in a disciplinary process

we don't have the full proof of the fact. Contrary to the enrichment that you break the bank secrecy, break the tax secrecy, contrary to an unfinished work in which you have the material proof that that work is not finished, in the case of sexual harassment, many times the act is done between four walls, it is done in hiding, it is done in a camouflaged way, in a non-transparent way.

What the Commission should do is to exercise its investigative spirit. It is to exercise its investigative spirit for the fact. Not to be content with the victim's and the accused's words, and in those situations that we call "indicator proof", that which is in a peripheral way, that which, in fact, without being the final proof of the fact, somehow corroborates the victim's testimony, or does not corroborate.

We will verify, and that's why the hearing is important, because the hearing is the first to collect these elements to be produced to the test or not later. It's asking the victim, for example, when was the time to try to get the videos of the entrance and exit of that room. It's asking where the victim went, with whom she spoke, the emotional situation she is in. I heard the secretary who did the

the entrance and exit of the victim in the room, for example. It's to verify that the victim had a behavior pattern and changes after the event. She starts to take her medical license, which she didn't have. She was the best server or best student and she starts to have a bad performance.

These elements are fundamental for us to create a judgment, a judgment to be able to conclude whether the assaider was condemned or not. These cases are what we call "indicator proof", which the STJ has been understanding, the TST has been understanding, and disciplinary jurisprudence understands that this is the fundamental element for us to have a condemnation in a disciplinary process of harassment.

Finally, and ending, a concern that we have to have. In the cases of harassment, in most cases, the relationship is subordinate, hierarchical. And we cannot maintain this hierarchical relationship during the process. If we maintain this hierarchy relationship, of power of command, every day that the victim meets with the accused, she is actually being

victimized again, she is being tortured, she does not have tranquility even to produce her tests. Imagine a teacher in the classroom in relation to his student and he will give her class every day, every day will correct her test, every day will evaluate her. We have to make the removal, the removal to protect, as provided in Article 147 of Law 8.112, or even the common protection of Law 9784.

The important thing is that the victim feels at ease, that the victim has a situation that she can produce and calmly report the facts.

It is necessary that the victim is treated as a collaborator, so that the hearing, correction, control systems and public administration can demonstrate that the harassment situation is not accepted in that workplace. This is the reason for the fight against harassment. It is to improve the working condition, to improve the condition of the public administration, to better provide a public service to society. Thank you.