Distribuição dinâmica do ônus da prova em processos com perspectiva de gênero: o processo civil à luz da busca pela igualdade

Abstract

This dissertation addresses the issue of evidence permeated by gender stereotypes within the scope of Brazilian civil procedure, even after the publication of Resolution No. 492/2023 by the CNJ, which makes the Protocol for Judgment with a Gender Perspective mandatory. The research starts from the observation that, despite normative advances, international judgments and the analysis of international human rights protection norms indicate the persistence of the influence of stereotypes in the production and assessment of evidence, compromising the pursuit of a fair and egalitarian Judiciary. The central objective of the dissertation is to analyze how legal patriarchalism, combined with the alleged neutrality of law, contributes to the silent perpetuation of judicial stereotypes and epistemic injustice in the production and assessment of evidence in Brazilian civil procedure. It seeks to understand how the apparently neutral application of procedural rules can, in practice, reproduce inequalities and harm access to justice, especially for women. The research methodology is structured in four distinct moments. Initially, a comprehensive theoretical analysis is carried out, with a literature review of classic and contemporary authors of civil procedure, who address the themes of evidence, justice, ethics and fair trial. Simultaneously, authors dedicated to the study of gender, stereotypes, evidence and procedural truth are analyzed, seeking to identify the interconnections between these elements. In a second moment, the research turns to the normative and jurisprudential analysis. Treaties and international norms for the protection of women's rights are examined, seeking to identify the relevant provisions for the theme of evidence in civil procedure. In parallel, cases judged by the International Courts and the Inter- American System of Human Rights are analyzed, with emphasis on the identification of judicial stereotyping as a form of human rights violation. The third moment of the research consists of the analysis of the application of the gender perspective within the scope of the production and assessment of evidence. The theories of the burden of proof are studied, with emphasis on the rule of dynamic burden and its application with a gender perspective. Furthermore, national judgments rendered after the entry into force of the CPC/2015 and the institution of the Protocol for Judgment with a Gender Perspective are analyzed, seeking to identify how Brazilian jurisprudence has dealt with the issue of evidence and gender stereotypes. Finally, the fourth moment of the research is dedicated to the correlation and discussion of the conclusions obtained in the previous stages. It seeks to establish a dialogue between the different theoretical, normative and jurisprudential perspectives, with the objective of discussing the need for normative or interpretative improvement of the standards used in the International System of Human Rights for the production and assessment of evidence. It aims, with this, to contribute to the reduction of the negative impacts of gender stereotypes in the Brazilian Justice System, with the proposition of normative alteration and identifying the impacts of the absence of a gender perspective in the production and attribution of the burden of proof in Brazilian civil procedure, contributing to the deepening of the debate on the theme and to the promotion of a more just and egalitarian Judiciary.