Pretrial detention in domestic violence cases: between protecting the victim and violating procedural guarantees

Abstract

Domestic violence constitutes a persistent social, cultural, and legal phenomenon that primarily affects women, children, the elderly, and people in vulnerable situations, reflecting structural inequalities and cultural patterns of domination and violence. It is not limited to physical aggression but also includes psychological, moral, patrimonial, and sexual forms, with serious consequences for the victims’ mental health, well-being, and family structure. Given this complex reality, the criminal justice system is challenged to provide swift and effective responses, ensuring the victim’s immediate protection and the offender’s accountability without compromising procedural guarantees. In this context, preventive detention emerges as the most severe precautionary measure, used to safeguard the victim’s physical and psychological integrity, prevent recidivism, and ensure the effectiveness of criminal prosecution. This article proposes a critical analysis of its application in cases of domestic violence, based on the Code of Criminal Procedure and Law No. 11.340/2006 (Maria da Penha Law), while also examining doctrines, jurisprudence, and empirical data that reveal both its importance and the risks of overuse. Finally, it seeks to reflect on legal alternatives and public policies capable of balancing victim protection with the fundamental rights of the accused.