On January 12, 2024, Law No. 14,811/24 was enacted, amending the Penal Code (Decree-Law No. 2,848/40), the law on heinous crimes (Law No. 8,072/90), and the Statute of the Child and Adolescent (Law No. 8,069/90).

In addition to legislative changes, the new regulations also establish measures to protect children and adolescents from violence in educational or similar institutions and set forth the national policy for preventing and combating the sexual abuse and exploitation of children and adolescents.

Clearly, the legislature placed emphasis on expanding protections for children and adolescents and created the long-awaited criminal offense: the crime of bullying and cyberbullying. The purpose of this article is to provide a brief analysis of the impacts of the new legislation on preventing and combating violence in the school environment and, in this context, to assess the effectiveness of the offense of systematic intimidation in light of the legislative text.

The Impacts of Law No. 14,811/24 on the School Environment

Law No. 14,811 may bring about changes in the Brazilian educational landscape by establishing and reinforcing the responsibilities of educational institutions and education professionals, and requiring schools to take a more active role in preventing violence in the school environment.

This includes ongoing training and professional development for teachers and staff, who must be able to identify signs of violence and intervene effectively, in addition to awareness-raising and prevention measures.

In this regard, Law No. 13,185/15 (which established the program to combat systematic bullying) provides, for example, in Article 4: The objectives of the Program referred to in the caput of Article 1 are: II—to train teachers and educational staff to implement measures for discussion, prevention, guidance, and resolution of the problem, and it must be implemented in an integrated manner with the new legislation.

Article 2, sole paragraph, of Law No. 14,811 itself defines what constitutes violence against children and adolescents, based on the following complementary legislation:

a) 13.185/15 – legislation establishing the program to combat systematic intimidation and providing definitions of bullying and cyberbullying (Article 2);

b) 13.431/17 – which regulates, among other matters, specialized questioning and special testimony by children and adolescents who are victims or witnesses of violence, and defines the types of violence in Article 4 (physical, psychological, sexual, institutional, and property-related);

c) 14.344/22—known as the Henry Borel Act—addresses domestic and family violence against children and adolescents, defines the meaning of violence in Article 2, and establishes protective measures beginning with Article 15.

It is also worth noting that Law No. 9,394 of December 20, 1996 (Law on Guidelines and Foundations of National Education) had already been amended in 2018, in Article 12, to establish the following obligations for educational institutions:

IX- promote measures to raise awareness, prevent, and combat all types of violence, especially systematic intimidation (bullying), in schools; (Added by Law No. 13,663 of 2018)

X- establish measures aimed at promoting a culture of peace in schools. (Added by Law No. 13,663 of 2018).

Schools, therefore, should be encouraged to hold workshops, conduct simulations, and even invite mental health experts to better prepare their faculty. In addition, it is recommended that school codes of conduct be reviewed and updated, with an emphasis on anti-violence policies and the creation of safety committees that include teachers, parents, and students.

The law also emphasizes the importance of a safe and inclusive school environment. Awareness campaigns about the impact of bullying, the creation of spaces for dialogue, and mentoring programs are some of the initiatives suggested to foster a school environment of respect and mutual support.

The use of digital tools to monitor technology use at school and to educate students about online safety has become essential to combating cyberbullying.

In addition, the new legislation incorporated the following legal obligations into the ECA:

Art. 59-A. Public or private social institutions that work with children and adolescents and receive public funds must require and maintain criminal background checks for all their employees, which must be updated every 6 (six) months.  

Sole paragraph. Educational and similar institutions, whether public or private, that work with children and adolescents—regardless of whether they receive public funds—must maintain up-to-date registration records and criminal background checks for all their employees.

These measures are aimed not only at prevention but also at establishing clear protocols for action in cases of violence or abuse, ensuring appropriate reporting and follow-up procedures, and reinforcing the provisions of the ECA, which address the responsibility of educational institutions in situations of violence (Articles 56 and 245).

This new legislation not only calls for immediate action but also drives a cultural shift in schools. It calls for the implementation of practical measures to prevent and respond to incidents of violence, with students actively participating throughout the entire process of developing and monitoring these measures.

Collaboration with local authorities and integration into networks for the protection of children and adolescents are equally important for a holistic and effective approach. Schools now face the challenge of adapting to these new legal requirements, which inevitably involves the ongoing professional development of educators.

Criminal Provisions of Law No. 14,811/24

Law No. 14,811/24 added the following to the law on heinous crimes: Article 122, main text and paragraph 4; kidnapping and false imprisonment of persons under 18 years of age (Article 148, paragraph 1, subparagraph IV of the Penal Code); human trafficking only when the victim is a child or adolescent (Article 149-A, paragraph 1, subparagraph II of the Penal Code); the crimes set forth in Articles 240, paragraph 1, and 241-B of the Child and Adolescent Statute (ECA) (it is important to emphasize that the legislature did not, therefore, consider all instances of child and adolescent pornography to be heinous crimes).

In the Penal Code, Law No. 14,811/24 amended the following articles: Article 121, paragraph 2-B (homicide against a person under 14 years of age had already been included by the Henry Borel Law and now includes an additional ground for an increased sentence (2/3) if the crime is committed in a public or private elementary or secondary school); Article 122 (the crime of inducing, instigating, or aiding suicide and self-mutilation)—adding paragraph 5 (the penalty is doubled if the perpetrator is a leader, coordinator, or administrator of a group, community, or virtual network, or is responsible for such entities).

It is important to note that this offense had already been amended by Law No. 13,968/19, which included self-harm and other aggravating factors, among which are increased penalties when the victim is a minor (paragraph 3, subparagraph II) and when the conduct is carried out via a computer network, social media, or broadcast in real time, that is, lawmakers were already concerned about violence occurring in the digital environment, notably in relation to online games or challenges.

Self-harm also led to the enactment of Law No. 13,819/2019, which establishes the National Policy for the Prevention of Self-Harm and Suicide and also requires educational institutions to report confirmed or suspected cases of self-inflicted harm to the Child Protection Council (Article 6).

On the Crimes of Bullying and Cyberbullying

Perhaps the most anticipated—and, at the same time, most debated—change introduced by the 2024 legislation was the addition of Article 146-A to the Penal Code: the criminalization of bullying and cyberbullying, within Chapter VI (Crimes Against Individual Liberty), Section I (Crimes Against Personal Liberty):

Systematic bullying

Art. 146-A. Systematically intimidating, individually or as a group, through physical or psychological violence, one or more persons, intentionally and repeatedly, without any apparent motive, by means of acts of intimidation, humiliation, or discrimination, or through verbal, moral, sexual, social, psychological, physical, material, or virtual actions:  

Penalty—a fine, unless the conduct constitutes a more serious crime.  

Systematic online bullying (cyberbullying)  

Sole paragraph. If the conduct is carried out through a computer network, social media, apps, online games, or any other digital medium or environment, or is transmitted in real time: 

Penalty—imprisonment for a term of 2 (two) to 4 (four) years, and a fine, unless the conduct constitutes a more serious crime. (Added by Law No. 14,811 of 2024)

The first observation concerns the extremely broad legislative wording (and its violation of the principle of legality, which holds that criminal offenses must be clear, objective, etc.) and its redundancy in some respects (such as “systematically intimidating through acts of intimidation,” for example), reflecting the difficulty of defining a behavior based on foreign terms, since the term “bullying” comes from the English word “bully” and is used to define all types of aggressive, intentional, and repeated behavior inherent in interpersonal relationships[1].

Thus, offending, humiliating, discriminating against, excluding, isolating, ignoring, persecuting, harassing, terrorizing, intimidating, tyrannizing, dominating, hitting, kicking, pushing, injuring, among other situations, serve to characterize this term, which has no literal translation into Portuguese and can encompass different types of behavior, various forms of violence, and different degrees of severity.

Given the problematic legislative wording, we will certainly encounter one of two situations: a) the erosion of criminal protection: the criminal offense is subsidiary (applicable only when a more serious offense is not present) and punishable by a fine (alone), and its scope will give rise to differing interpretations, including claims that it is inapplicable; b) driven by the principle of maximum criminal law and, especially, by the need for a swift response to the problem of violence in the school setting, it will be widely applied to any situation.

See also:

• Childcare during school breaks: Is it a family’s right? Is it the municipality’s obligation?
• What accounts for the success of public school students?
• The Challenges and Impacts of Implementing the New National Digital Education Policy

In any case, the criminal offense requires repeated acts (systematic intimidation); that is, a single act will not constitute the crime, and it does not require that the perpetrator or victim be under 18 years of age, nor does it refer to basic education, etc., so nothing prevents, for example, situations like these from occurring, even in the university setting—among students, or from students toward professors and vice versa. The university environment is a diverse one (thankfully, and as it should be) and, as such, is subject to tensions and situations like these.

If, however, the perpetrator is a child or adolescent, the measures provided for in the Statute of the Child and Adolescent must be applied, since the act must be considered a juvenile offense (Article 103 of the ECA).

Systematic online bullying (cyberbullying) carries a harsher penalty (imprisonment for 2 to 4 years and a fine), although it is also a subsidiary offense. The term “cyberbullying,” like “bullying,” is quite broad and comprehensive, encompassing a range of behaviors, and can be defined as intentional and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.

Thus, the phenomenon of cyberbullying encompasses any and all types of aggression, harassment, coercion, blackmail, manipulation, persecution, name-calling, humiliation, embarrassment, and similar conduct carried out using and through information and communication technologies[2].

In fact, it is worth reiterating that Law No. 13,185/15 also attempted—without much success (given the broad scope of the term, as already noted)—to define situations of systematic intimidation, but these are not criminal provisions like the one set forth in Article 146-A of the Penal Code.

Both bullying and cyberbullying are intentional crimes, with no provision for negligent forms. The criminal definition allows for more than one person to be involved, whether as perpetrators or victims (systematically intimidating, individually or as a group, through physical or psychological violence, one or more people); it remains to be seen, however, how many individuals are required to constitute a group.

Finally, issues involving the protection of children and adolescents, as well as situations of violence in the school environment, clearly deserve attention.

In this regard, the legislature took a step in the right direction by strengthening measures related to policies for the protection of and prevention of violence against children and adolescents, thereby raising awareness—especially in the context of educational institutions—about the importance of developing skills to address issues of violence and students’ mental health.

However, in the criminal law context, the legislature has created problematic and ambiguous situations, including the establishment of an unnecessary and poorly drafted criminal offense, which leaves it up to the judge to determine whether or not the new offense is effectively established. We can only wait and monitor case law to see how—and if—the criminal offense of bullying/cyberbullying will be applied and, above all, whether it will serve to curb such behavior.

About the authors:

[1] FIORILLO, Celso Antonio P. CONTE, Christiany Pegorari. Crimes in the Digital Environment and the Information Society. São Paulo: Saraiva, 2016, pp. 255–256.

[2] Ibid., p. 258.

*This text does not necessarily reflect the opinion of Bett Brasil.

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