**4. Jury trial or witch-hunt?**

*Education, Human Rights and Peace in Sustainable Development*

After 3 months, the state's Prosecution Office offered a suit against NeideMota and other six of her employees for the crime of abortion and criminal association [27]. The medical reports (9896) of the patients, handled without the presence of an expert, were included on the process as proof for the indictment. In order for the crime not to

That is, the medical reports served as basis to the process, especially the ones that had ultrasonography, positive pregnancy tests and forms signed by women authorizing the medical procedures. Cases of prescription and ones with information judged incomplete by justice were discarded [25, 26, 28]. Such a measure

Of these, the first called to attend to the police station did not know what the intimation was about and were submitted to questioning without clarification of their rights, like the right to keep silent or having the presence of a lawyer or public defender. This fact represents a violation of the right to full defense and the minimal judicial guarantees [27]. To some of them, it was offered the process' suspension so they would not be taken to jury, as long as they accepted to collaborate with investigations and under some conditions. Only five men were sued on this stage [26] and,

Through 3 months, the process were available for public consultation on the Justice Court of MatoGrosso do Sul's (TJ/MS) website and many people had access to the names, accusation and address of the women who supposedly had had abor-

During the judicial treatment of the case there was a sentence reversion (based on the law 9.009/95) on the alternative sentences and many women were able to choose to pay a fine, community service or donation of a basic products list. Poor women, generally, opted for community service, where they were obligated to make it on day care centers and schools, bringing moral and emotional embarrassment and strong self-blaming. The Judge's declaration to the press revealed that this condemnation was on purpose: they should take care of children and regret what

It is established that the police mandate to close the Clinic did not authorize the apprehension of medical reports. The delegate that took the case, Dra. Regina Márcia Rodrigues de Brito affirmed to Ipas Brasil: "if we were investigating a clinic where they did not make abortions, we would not have taken the medical reports" ([26], p. 6). She also affirmed that it would not be possible to sue the women

According to Art. 154 of the Penal Code, to reveal secrets to someone without fair cause concerning a role or profession and which revealing could cause damage to another is punishable with 3 months to 1 year of detention and a fine. Art. 102 of the Brazilian Medical Ethic's Codedescribes methods to secure the confidentiality and protect patient's privacy on criminal investigations. Not even a judicial ordercan

Resolution n° 1.605/2000 of the Federal Medical Council, on the Art. 4, is another document that determines the procedures: "if a judicial authority demands the presentation of medical reports during a criminal process, the doctor will provide those documents only to a legal expert named by the judge that will analyse

In light of that, only 1500 women were indicted, but them all (around 10,000) had their rights violated, even though both medical secrecy and their privacy were disrespected. After all, the medical reports were handled by police and justice employees without the presence of an expert, damaging the women's right to medical secrecy, which concerns only them since it involves the intimacy of their bodies

prescribe, the prosecution denounced all the ten thousand women [25, 26].

resulted on the accusation of 1500 women for crimes of abortion.

as the story went, it is estimated that less than 10 were indicted.

tions, violating the constitutional right to privacy [26].

without information that were on the reports [26].

suppress the mandatory protection of professional secrecy.

they had done [26].

the question" (p. 6, [26]).

**216**

[26, 27].

The Jury trial that submitted the four former workers from the Family Planning Clinic, Libertina de Jesus Centurion, Rosângela de Almeida, Maria Nelma de Souza and Simone Aparecida Cantagessi de Souza to the scrutiny of a popular jury had its first run on April 8, 2010, at 8 a.m., on the 2nd Section of the Jury Court on the Justice Forum of Campo Grande-MS county, lasting for 2 days.13

Despite the intense disclosure of the case on vehicles of mass communication, there were few people where the judgment took place. It was noticeable the attendance of friends and family of the defendants, students, law operators, and just five feminists from the city, among other actors made the timid and simple audience made by a group of a little more than 30 people. There were no banners, outcries or any kind of public manifestation on the front of the Forum, contrasting the intense acting of the Brazilian feminist organizations to stop the conviction of the clinic's patients, criminalized for abortion over the past 3 years.

Three members of the Prosecution Office, four defense lawyers, the judge, employees of the Forum and, posteriorly, the four indicted (who entered escorted by policemen), and the seven juries members of the Verdict Council composed the actors framework in plenary. It all seemed too serious and gloomy, except for the striking presence of the press. Journalists from various TV stations, from printed and online newspapers, made the event coverage with media ratio breaking the ice from the formalities and sobriety atmosphere.

The magistrate AluízioPereira dos Santos started the trial by communicating the criminal process instruction in plenary and identifying all the actors involved: the presiding judge (that is, himself), the prosecutors, defense lawyers and indicted.

After the initial instructions from the judge, the judgment started with the argumentation of Siufi, defense lawyer of Simone Cantagessi, who questioned the judge about to whom had been delivered the expert forensic medical report about

<sup>12</sup> Information available on the website: https://alias.estadao.com.br/noticias/geral/livro-de-josephfrank-e-mais-que-uma-biografia-de-dotoievski/70002482374 [Accessed on: August 15, 2018].

<sup>13</sup> The first date of the judgment was supposed to be on February 24, 2009, but it was changed by the judge due a question of order argued by the defense that pointed violation of natural principles and excess of accusations.

the medical records apprehended at the clinic. By highlighting that the results of the document's analysis does not prove the materiality of the crime, Siufi asks the judge the postponement of the Jury, an arguing that will insistently resume during the moments granted to the defense time.

*"If it was delivered to someone who's part of the Prosecution Office, I ask Your Honor for it to be officiated to the National Council of the Prosecution Office to take appropriate action, because I'm sure that if this document was here, the decision of the crime would be another" [29, 30].*

Siufi alerted that the report of indirect corpus delicti forensic exam already mentioned the material collected at the clinic, sustaining that the reports do not prove the materiality of the crime. This fact would show the existence of ungrounded questions and would allow blurred inductions of the case assessment. In face of that, the lawyer defended the postponement of the Popular Jury in view of the wide possibility of conducting the legal process through tortuous ways. Another two requirements are worded by the lawyer: the withdraw of the police escort around the defendants and the removal of two of the present prosecutors under the allegation of over charge.14 Judge Aluízio Pereira dos Santos says:

*"Concerning the escort, the escort remains. The treatment that they will have will be the same as the others that were here, and we will ask the policemen to keep their distance because they're not dangerous, but in order to avoid some unpredictable situations the police will stay. Concerning the forensic reports, this is in protocol and we will see about that. Concerning the accusation questions, there are many, they exceed 512, but they are temporary, the wording is temporary, I will see the pleas and we will get to the end of the judgement to a wording that comes to attend the defense, the Prosecution Office and above all the judge's interests. […] because we received a document from the court judge that I read carefully and it says that the jury can't be postponed. Concerning the presence of prosecutors in the plenary, they will stay as observers, the question is solved" (Aluízio Pereira dos Santos).*

Obeying the lawyer's request about the presence of the police in an oppressive position and repressing the defendant during the judgment, the judge kept the escort, but asking for a bigger distance between the police and the women. The speech of the magistrate seems to suggest an implicit consent shared by other actors in scene about the fact that the defendants are not "criminals," but had just committed acts adverse to the legislation and should answer for that. It also reveals a sense based on gender stereotypes, in which the feminine essence is not seen as dangerous or menacing by nature [31]. However, it does not redeem the situation.

The judge Aluízio dos Santos also informed the possible review of the accusation questions due to the volume of material and decided for the maintenance of the two original prosecutors in plenary only as observers,15 being replaced by the prosecutor Douglas Oldergardo Cavalheiro dos Santos. Resuming session the judge explained the procedures for formation and acting of the juries council, highlighting the principle of incommunicability between the members of the jury and, then, handed

**219**

happened at the place.

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

act, the judge requested the entry of the four indicted in the plenary.

spotlight and the audience of little more than 30 people.

the justice, wrought by the classic "So I promise."

over copies of a document containing guidance to the juries staff. Concluding this

A mix of apprehension, anxiety, emotional exhaustion and fear was painted on the face of the defendants followed by female police officers. On the chairs pointed by his honor, the corporal image of the defendants revealed certain submission and gentleness characteristic of feminine socialization. The curved silhouettes and the heads slightly bowed down indicated a clear attempt to hide or to look away, possibly scared, bewildered and embarrassed before the police escort ahead, the press'

One of them was visibly shaken and tears ran down her face. It was then that the judge explained to the indicted she could wait on the adjoining room or even leave the court if she wanted, pointing out that the legislation did not define the mandatory presence of the defendants during the course of the judgment. On this specific matter, the judge considered that the Court presents a democratic characteristic. The next stage consisted on the sortition of seven names among the 25 possible present juries. The defense refused two juries and the prosecutors three, requiring new draws until the final composition of the seven juries, composed by five women and two men. Then started the ritual procedure of commitment of the juries with

On the next pages it will be described the most important moments of the trial starting with some considerations from the magistrate, followed by the testimony

The synthesis of the accusation sentence read by the judge pointed the television coverage as the catalyst of the elements that provided the criminal investigation. His honor referenced the first material shown on TV, two reporters with a hidden camera disguised as a couple looking for an abortion at the clinic, subject to financial charging, and the second where Neide Mota admits openly in interview to the journalist Honório Jacometto to perform abortions by clients request. The defendants were indicted for involvement in 26 procedures of abortions in 25 women, totalizing 26 cases and 25 prosecution witnesses, at the Family Planning Clinic.16 The judge revealed that 51 witnesses were heard and that wiretaps were requested at the start of the process. He informed that he defended the temporary arrest of doctor Neide and Simone for 5 days but the Justice Court ordered their

<sup>16</sup> One of the defense witness had two abortion at the clinic, resulting in a total of 26 abortions that

of the defendants, the prosecutor's speech and the defense pleas.

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

<sup>14</sup> Until this moment the responsible for the case were promoters Paulo Cesar Passos and Luciana do Amaral Nagib, being replaced when the judgment started by promoter Douglas Oldergardo Cavalheiro dos Santos.

<sup>15</sup> Lately those promoters left the room to avoid pretexts that could help canceling a future decision on the judgment.

#### *Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

over copies of a document containing guidance to the juries staff. Concluding this act, the judge requested the entry of the four indicted in the plenary.

A mix of apprehension, anxiety, emotional exhaustion and fear was painted on the face of the defendants followed by female police officers. On the chairs pointed by his honor, the corporal image of the defendants revealed certain submission and gentleness characteristic of feminine socialization. The curved silhouettes and the heads slightly bowed down indicated a clear attempt to hide or to look away, possibly scared, bewildered and embarrassed before the police escort ahead, the press' spotlight and the audience of little more than 30 people.

One of them was visibly shaken and tears ran down her face. It was then that the judge explained to the indicted she could wait on the adjoining room or even leave the court if she wanted, pointing out that the legislation did not define the mandatory presence of the defendants during the course of the judgment. On this specific matter, the judge considered that the Court presents a democratic characteristic.

The next stage consisted on the sortition of seven names among the 25 possible present juries. The defense refused two juries and the prosecutors three, requiring new draws until the final composition of the seven juries, composed by five women and two men. Then started the ritual procedure of commitment of the juries with the justice, wrought by the classic "So I promise."

On the next pages it will be described the most important moments of the trial starting with some considerations from the magistrate, followed by the testimony of the defendants, the prosecutor's speech and the defense pleas.

The synthesis of the accusation sentence read by the judge pointed the television coverage as the catalyst of the elements that provided the criminal investigation. His honor referenced the first material shown on TV, two reporters with a hidden camera disguised as a couple looking for an abortion at the clinic, subject to financial charging, and the second where Neide Mota admits openly in interview to the journalist Honório Jacometto to perform abortions by clients request. The defendants were indicted for involvement in 26 procedures of abortions in 25 women, totalizing 26 cases and 25 prosecution witnesses, at the Family Planning Clinic.16

The judge revealed that 51 witnesses were heard and that wiretaps were requested at the start of the process. He informed that he defended the temporary arrest of doctor Neide and Simone for 5 days but the Justice Court ordered their

*Education, Human Rights and Peace in Sustainable Development*

*sion of the crime would be another" [29, 30].*

moments granted to the defense time.

the medical records apprehended at the clinic. By highlighting that the results of the document's analysis does not prove the materiality of the crime, Siufi asks the judge the postponement of the Jury, an arguing that will insistently resume during the

*"If it was delivered to someone who's part of the Prosecution Office, I ask Your Honor for it to be officiated to the National Council of the Prosecution Office to take appropriate action, because I'm sure that if this document was here, the deci-*

Siufi alerted that the report of indirect corpus delicti forensic exam already mentioned the material collected at the clinic, sustaining that the reports do not prove the materiality of the crime. This fact would show the existence of ungrounded questions and would allow blurred inductions of the case assessment. In face of that, the lawyer defended the postponement of the Popular Jury in view of the wide possibility of conducting the legal process through tortuous ways. Another two requirements are worded by the lawyer: the withdraw of the police escort around the defendants and the removal of two of the present prosecutors under the allegation of over charge.14 Judge Aluízio Pereira dos Santos says:

*"Concerning the escort, the escort remains. The treatment that they will have will be the same as the others that were here, and we will ask the policemen to keep their distance because they're not dangerous, but in order to avoid some unpredictable situations the police will stay. Concerning the forensic reports, this is in protocol and we will see about that. Concerning the accusation questions, there are many, they exceed 512, but they are temporary, the wording is temporary, I will see the pleas and we will get to the end of the judgement to a wording that comes to attend the defense, the Prosecution Office and above all the judge's interests. […] because we received a document from the court judge that I read carefully and it says that the jury can't be postponed. Concerning the presence of prosecutors in the plenary, they will stay as observers, the question is solved" (Aluízio Pereira dos Santos).*

Obeying the lawyer's request about the presence of the police in an oppressive position and repressing the defendant during the judgment, the judge kept the escort, but asking for a bigger distance between the police and the women. The speech of the magistrate seems to suggest an implicit consent shared by other actors in scene about the fact that the defendants are not "criminals," but had just committed acts adverse to the legislation and should answer for that. It also reveals a sense based on gender stereotypes, in which the feminine essence is not seen as dangerous

The judge Aluízio dos Santos also informed the possible review of the accusation questions due to the volume of material and decided for the maintenance of the two original prosecutors in plenary only as observers,15 being replaced by the prosecutor Douglas Oldergardo Cavalheiro dos Santos. Resuming session the judge explained the procedures for formation and acting of the juries council, highlighting the principle of incommunicability between the members of the jury and, then, handed

<sup>14</sup> Until this moment the responsible for the case were promoters Paulo Cesar Passos and Luciana do Amaral Nagib, being replaced when the judgment started by promoter Douglas Oldergardo Cavalheiro

<sup>15</sup> Lately those promoters left the room to avoid pretexts that could help canceling a future decision on

or menacing by nature [31]. However, it does not redeem the situation.

**218**

dos Santos.

the judgment.

<sup>16</sup> One of the defense witness had two abortion at the clinic, resulting in a total of 26 abortions that happened at the place.

arrest. The members of the jury understood that there was sufficient evidence as to criminal authorship and proof of materiality. Thereafter, this sentence was altered, but the prosecution appealed and the conviction was kept.

The questions period came next, when questions directed to the defendants referred to the time they knew Neide Mota, if they had knowledge about the abortion of living fetuses, if the judicial pardon was offered and another about the value of the appointments, the business hours, the procedures made at the clinic, if the doctor had patients designated by other doctors, if they identified the presence of patients that were on social columns, etc. The three nurses gave similar answers, saying they did not knew Neide Mota before working at the clinic, and also their role on the clinic, like checking the blood pressure, weighing the patients and the medical screening. They also pointed they did not knew about the removal of living fetuses alleging that the clinic only made the procedure of removal of retained abortions, cysts, curettage and DIU (Intra uterine device) placement.

They also stressed that women of low and high class attended the clinic, and many of them attended pointed by other doctors. One of them said it was usual the presence of notable personalities, influent and known people that were mentioned on social columns and that it had occurred the removal of a living fetus by court order, probably involving rape or fetal anomaly incompatible with life. Another one pointed that the clinic had operation license and went through frequent supervision of the Prefecture, also highlighting that the doctor always took part of Nursing Weeks in educational institutes where she gave lectures about contraceptive methods. Two of the three nurses conciliated the work at the clinic with services at other hospitals ant the three denied peremptorily the accusation of criminal association. But they offered to collaborate on the process as to obtain judicial pardon. They highlighted they did not knew the values charged and what happened during the appointment because Neide made the appointments alone with the patients in the room and that they, assistants, only obeyed the doctor's orders according to notes on the patients' medical records.

Simone Cantagessi was the only defendant that confirmed abortions at the clinic, but did not plea guilty on the criminal association charge. Unlike the information spread by the press, Cantagessi said she worked at the place for 6 months only, after moving from Goiânia to Campo Grande. She said she did not knew the city, did not find regular work and that her function was to make the patients' medical screening.

At the appointment she questioned women about the reasons that made them look for an abortion, talked about contraceptive methods, explained the facts, the procedures and showed other options. She emphasized that the role of the psychology professional is not one of convincing and that interrupting the pregnancy was a decision that should be made by the pregnant women. She also revealed the impossibility of knowing if the patients went back because of the psychological treatment and that to her what really mattered "was their life, what they would chose for their life." She emphasized never have mentioned a price list17 about the costs of having a child and even told the patients the story of a cousin who managed to sustain all her children working as a housekeeper. Her work consisted on simply clarifying the situation and talking about alternatives besides abortion.

**221**

arrives to a clinic.

Machado clinic.

of the word "kids" instead of "fetuses".

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

*"I know that in my country abortion is a crime. If regret could kill, I would be dead. I could have attended women at my clinic and would do it the same way. It bothered me the interview saying I worked five years at the clinic, but it was only 5 or 6 months when I arrived from Goiânia. Daniela was the former psychologist. All I hope is that justice will be done. But too many things were distorted. I regret what I did there. My council, the CRP (Regional Psychology Council) did not remove my license. I acted within my profession. I'm not the one who kills children, against life,* 

Following the jury, what was seen was an exaggeration of prosecution's powers that imposed inquisitorial emphasis upon the defendants, but that also exposed contradictions and a thirst for the conviction of the women, which will be shown forward on this text by the defense lawyer speech and reasoning. During some moments, the court resembled a big staging show, like a persuading game, rhetoric

At the start of the accusation charges, Douglas Oldegardo Cavalheiro dos Santos exhibited the TV report where Neide Mota confirmed to performing abortions. The prosecutor signalized that the journalistic material showed facts that should be of everyone's knowledge due the placement on television, warned the jury to be careful on not making judgments based on previous opinions. It was also said that the case of the Family Planning Clinic had, possibly, the biggest amount of procedural documents on the history of the Mato Grosso do Sul Court. One of the biggest concerns of the prosecutor revealed on the court was "the inductive detour of this polemic's process," because it was not about being pro or against abortion. The discussion should be linked to the law, despite the pressure of NGOs that, according to the prosecution, would report to international instances the case on Mato Grosso do Sul. It was explained that the case of the Family Planning Clinic was one of violation of the right to live because there is no place in the world, not even where abortion is legal, that it is made on the first time a woman

The prosecution alleged that abortion has nefarious effects on the psychological integrity of the women and highlighted the financial interests, the mercantilist character and the social segregation of abortion on Dr. Neide's clinic. They also said that the clinic had expired medications, veterinary medications used for "pig abortions"18 and a "disgusting fetus absorbing machine." At this moment, the promoter requested that the materials collected at the clinic were brought and took from a transparent plastic box the "disgusting absorbing machine," showing it to the plenary. Concerning the medical records and apprehensions, the prosecutor said that they did not prove the materiality, but corroborated with the materiality. Concluding, he said that there were the pro-life and pro-choice groups, but no feminist movement would be favorable to what happened at Doctor's Neide Mota

The prosecution then made explicit the accusation made by the 25 witnesses, that is, the women that confessed having an abortion. Each one of the four defendants there at the jury's mercy was accused for involvement on intervention of 26 aborts for working at the clinic, however, not having participated on the same way on each one of the 26 procedures, because the effective support varied according to professional competence and their work hours. For instance, in some cases, there was no even contact between the employee and the patient. That means that the charging

<sup>18</sup> Promoter refers to the medication Cytotec. In some moments of his exposition, it could be seen the use

and eloquence on a fierce duel between promoter and the defense.

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

*like the press made me look" [29, 30].*

<sup>17</sup> The price list containing information about the costs of raising a kid was found in one of the walls at the clinic and highlighted by press' ballyhoo. However, the information on this paper, taken from a magazine, did not work as a document that was related to the appointments with local workers and was a minor data on the case.

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

*"I know that in my country abortion is a crime. If regret could kill, I would be dead. I could have attended women at my clinic and would do it the same way. It bothered me the interview saying I worked five years at the clinic, but it was only 5 or 6 months when I arrived from Goiânia. Daniela was the former psychologist. All I hope is that justice will be done. But too many things were distorted. I regret what I did there. My council, the CRP (Regional Psychology Council) did not remove my license. I acted within my profession. I'm not the one who kills children, against life, like the press made me look" [29, 30].*

Following the jury, what was seen was an exaggeration of prosecution's powers that imposed inquisitorial emphasis upon the defendants, but that also exposed contradictions and a thirst for the conviction of the women, which will be shown forward on this text by the defense lawyer speech and reasoning. During some moments, the court resembled a big staging show, like a persuading game, rhetoric and eloquence on a fierce duel between promoter and the defense.

At the start of the accusation charges, Douglas Oldegardo Cavalheiro dos Santos exhibited the TV report where Neide Mota confirmed to performing abortions. The prosecutor signalized that the journalistic material showed facts that should be of everyone's knowledge due the placement on television, warned the jury to be careful on not making judgments based on previous opinions. It was also said that the case of the Family Planning Clinic had, possibly, the biggest amount of procedural documents on the history of the Mato Grosso do Sul Court. One of the biggest concerns of the prosecutor revealed on the court was "the inductive detour of this polemic's process," because it was not about being pro or against abortion. The discussion should be linked to the law, despite the pressure of NGOs that, according to the prosecution, would report to international instances the case on Mato Grosso do Sul. It was explained that the case of the Family Planning Clinic was one of violation of the right to live because there is no place in the world, not even where abortion is legal, that it is made on the first time a woman arrives to a clinic.

The prosecution alleged that abortion has nefarious effects on the psychological integrity of the women and highlighted the financial interests, the mercantilist character and the social segregation of abortion on Dr. Neide's clinic. They also said that the clinic had expired medications, veterinary medications used for "pig abortions"18 and a "disgusting fetus absorbing machine." At this moment, the promoter requested that the materials collected at the clinic were brought and took from a transparent plastic box the "disgusting absorbing machine," showing it to the plenary. Concerning the medical records and apprehensions, the prosecutor said that they did not prove the materiality, but corroborated with the materiality. Concluding, he said that there were the pro-life and pro-choice groups, but no feminist movement would be favorable to what happened at Doctor's Neide Mota Machado clinic.

The prosecution then made explicit the accusation made by the 25 witnesses, that is, the women that confessed having an abortion. Each one of the four defendants there at the jury's mercy was accused for involvement on intervention of 26 aborts for working at the clinic, however, not having participated on the same way on each one of the 26 procedures, because the effective support varied according to professional competence and their work hours. For instance, in some cases, there was no even contact between the employee and the patient. That means that the charging

*Education, Human Rights and Peace in Sustainable Development*

but the prosecution appealed and the conviction was kept.

arrest. The members of the jury understood that there was sufficient evidence as to criminal authorship and proof of materiality. Thereafter, this sentence was altered,

The questions period came next, when questions directed to the defendants referred to the time they knew Neide Mota, if they had knowledge about the abortion of living fetuses, if the judicial pardon was offered and another about the value of the appointments, the business hours, the procedures made at the clinic, if the doctor had patients designated by other doctors, if they identified the presence of patients that were on social columns, etc. The three nurses gave similar answers, saying they did not knew Neide Mota before working at the clinic, and also their role on the clinic, like checking the blood pressure, weighing the patients and the medical screening. They also pointed they did not knew about the removal of living fetuses alleging that the clinic only made the procedure of removal of retained abortions, cysts, curettage and DIU (Intra uterine device)

They also stressed that women of low and high class attended the clinic, and many of them attended pointed by other doctors. One of them said it was usual the presence of notable personalities, influent and known people that were mentioned on social columns and that it had occurred the removal of a living fetus by court order, probably involving rape or fetal anomaly incompatible with life. Another one pointed that the clinic had operation license and went through frequent supervision of the Prefecture, also highlighting that the doctor always took part of Nursing Weeks in educational institutes where she gave lectures about contraceptive methods. Two of the three nurses conciliated the work at the clinic with services at other hospitals ant the three denied peremptorily the accusation of criminal association. But they offered to collaborate on the process as to obtain judicial pardon. They highlighted they did not knew the values charged and what happened during the appointment because Neide made the appointments alone with the patients in the room and that they, assistants, only obeyed the doctor's orders according to notes on

Simone Cantagessi was the only defendant that confirmed abortions at the clinic, but did not plea guilty on the criminal association charge. Unlike the information spread by the press, Cantagessi said she worked at the place for 6 months only, after moving from Goiânia to Campo Grande. She said she did not knew the city, did not find regular work and that her function was to make the patients'

At the appointment she questioned women about the reasons that made them look for an abortion, talked about contraceptive methods, explained the facts, the procedures and showed other options. She emphasized that the role of the psychology professional is not one of convincing and that interrupting the pregnancy was a decision that should be made by the pregnant women. She also revealed the impossibility of knowing if the patients went back because of the psychological treatment and that to her what really mattered "was their life, what they would chose for their life." She emphasized never have mentioned a price list17 about the costs of having a child and even told the patients the story of a cousin who managed to sustain all her children working as a housekeeper. Her work consisted on simply clarifying the

<sup>17</sup> The price list containing information about the costs of raising a kid was found in one of the walls at the clinic and highlighted by press' ballyhoo. However, the information on this paper, taken from a magazine, did not work as a document that was related to the appointments with local workers and was a

situation and talking about alternatives besides abortion.

**220**

placement.

the patients' medical records.

medical screening.

minor data on the case.

<sup>18</sup> Promoter refers to the medication Cytotec. In some moments of his exposition, it could be seen the use of the word "kids" instead of "fetuses".

points by which they were being accused were not similar for all the defendants, because they were elaborated according to the participation on the facts. The prosecution persisted with the presentation emphasizing the importance of individualization of each case being judged, that is, in line with the specificity of the involvement of the defendants and meticulous analysis of the charging points on account of the high numerical proportion.

Following, they listed the accusations: abortion assistance, patient's persuasion, patient's medication with abortive drugs, among others. However, it was recognized that they did not have proof enough for five of the confessed abortion cases and that other six witnesses had not spoken about the involvement of the health professionals. It was then pointed 15 accusations made by witnesses and the judge received the request of conviction of the three nurses. One professional should be condemned for one case and participation on two abortions; the other assistant should be condemned on five cases of abortion and the third defendant for collaborating on four abortions. For the nurse was requested the condemnation on four occurrences and involvement on other five with minor participation; for the psychologist, the prosecution requested condemnation for acting on five episodes and minor participation on another four. The prosecution finished pointing out that the defendants had good nature, but would still pay for the mistakes made at the clinic, remembering that 12 out of the 13 women that alleged to having aborted declared regret. Furthermore, it was insisted that the treatment at the clinic was a system that privileged the abortion in detriment of protection of the patients or of another option on the pregnancy.

Only two defense lawyers requested speaking time. The first emphasized that the defendants cooperated with the investigation, but without the grants of judicial pardon like many patients attended at the clinic. He reiterated once again that the reports about the medical records does not prove the materiality of the crime and, therefore, there should be no prove, only mere assumptions. He argued that the 1988 Federal Constitution, Brazil's supreme law, requires the materiality for conviction. Lawyer Siufi initiated his speech showing one of the tv news that originated the charge: the news report recorded with a hidden camera on which his client is shown guiding a supposedly pregnant couple looking for abortion. He highlighted the illegal character of the recording from TV Morena, affiliate of Rede Globo, mocking: "a TV channel that preaches morality, see the example set by Big Brother" and accentuating society's hypocrisy.

Siufi's exposition was marked by questionings about the methods used for producing evidence, contradictions, arbitrariness and the lack of sustainability of the condemnations. Adding to the reading of the prosecutor about the accusation of abortion practice involving Simone Cantagessi, he alleged that the incrimination had no grounds, since there was no determining participation of the healthcare professional in many of the cases pointed out by the prosecution. Going through the testimonies of some accusation witnesses read by the prosecution, the lawyer detailed that there was no participation from the psychologist. In three cases Simone just had a talk with the patient. In one of them the accusation witness alleged to having a spontaneous abortion at home and did not look for the clinic again, on the other two, accusation related the fact that the psychologist did not induce or persuaded them about abortion. Siufi explained that it was within the competence of the psychologist to talk with the patient, being that the professional did not talk or, much less, decided and encouraged the interruption of pregnancy. "That was her job," asserted the defense. In other nine cases there was no participation of the psychologist, since the witnesses did not even mention her name or guaranteed they did not talk to her.

**223**

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition…*

The defense also recalled that judicial pardon was considered due to Simone's collaboration on investigations and the prosecution recognized her collaboration, signaling at judicial pardon, but during final allegations looked down on Simone's

Unlike his client, Siufi highlighted that some patients at the clinic had a different procedural treatment and received judicial pardon. The defense then questioned who were those women, sharpening public's curiosity: The question that remains is who are they? Were they rich? Congressmen's lovers? Authorities' daughters? High class people? According to the defense, this discrepancy on treatment aroused suspicions about the suitability of the judicial procedures, because the judge's decision left behind doubts for benefiting people who also had participation on the events. Another point discussed was the early access by the Prosecutors Office to the expert report of medical records. The lawyer emphasized that prosecution already had privileged information long before the other parts, even the defense. Lawyer Siufi also warned to the time required to evaluate in detail each point to be judged. Due to the high number of questions under examination, the defense speech said that if the review of each question point took 5 minutes, it would be necessary more

The defense also insisted pithily on reflecting about the motivations who took a big quota of women to opt for interrupting the pregnancy, like the lack of financial condition, pressure of a partner who does not want the child or the male abandonment before the pregnancy, as well as emotional conditions, the delicate dilemmas and the most intimate feeling of each woman before a unwanted or unplanned

*"Did the person have no way of raising a child or the father did not want to recognize it? Were they forced by their boyfriend, husband or fiancées? How many people we know that were forced to give up their child for adoption because they had no conditions of raising it? Am I saying any lies here? Those kids at the streets in Campo Grande, it's not about being pro or against abortion, no! It's necessary to see the inward of everyone. How can I get into the heart of someone who's sweet, that no one knows? How can I? Campo Grande has around 800 thousand people. Those 10 thousand women, they are about 5% of the population over those 20 and some years. That was on Dr. Neide's office, it was a medical document, it was in* 

One of the peaks of the judgment was Siufi's revelation about the lack of proof on the presumed abortions that happened at the clinic, according to the information subsidized by the expert report regarding the content of the medical reports. He stressed that the proof of crime is given by the materiality of the crime, that is, the report of the corpus delicti examination. Therefore, it is not about speculating or judging if the woman committed or not the abortion. And the material proofs, the report of the indirect corpus delicti examination did not prove the abortions.

*"There was no participation of Simone on Aline's case or in any other. There's no way to know, the reports don't prove. There's no way to know if it was DIU placement, spontaneous abortion, cyst or curettage. There's no way to know. And even in doubt there is a conviction against Dr. Simone. If she had no part, she did not participate in anything. Your excellencies will have to absolve her. Without the first accusation point all the others are harmed. And also the judicial pardon and the penalty reduction, there's no need of all that and the other accusation points. Tatiana also had no participation, nothing, from Dr. Simone. I'd like you to judge* 

*DOI: http://dx.doi.org/10.5772/intechopen.89014*

help and did not grant the pardon.

than 2 days to finish the trial.

*her office" [29, 30].*

*this case correctly" [29, 30].*

pregnancy.

*Abortion, Criminal Law and the Ten Thousand Women: Portraits of the Inquisition… DOI: http://dx.doi.org/10.5772/intechopen.89014*

The defense also recalled that judicial pardon was considered due to Simone's collaboration on investigations and the prosecution recognized her collaboration, signaling at judicial pardon, but during final allegations looked down on Simone's help and did not grant the pardon.

Unlike his client, Siufi highlighted that some patients at the clinic had a different procedural treatment and received judicial pardon. The defense then questioned who were those women, sharpening public's curiosity: The question that remains is who are they? Were they rich? Congressmen's lovers? Authorities' daughters? High class people? According to the defense, this discrepancy on treatment aroused suspicions about the suitability of the judicial procedures, because the judge's decision left behind doubts for benefiting people who also had participation on the events.

Another point discussed was the early access by the Prosecutors Office to the expert report of medical records. The lawyer emphasized that prosecution already had privileged information long before the other parts, even the defense. Lawyer Siufi also warned to the time required to evaluate in detail each point to be judged. Due to the high number of questions under examination, the defense speech said that if the review of each question point took 5 minutes, it would be necessary more than 2 days to finish the trial.

The defense also insisted pithily on reflecting about the motivations who took a big quota of women to opt for interrupting the pregnancy, like the lack of financial condition, pressure of a partner who does not want the child or the male abandonment before the pregnancy, as well as emotional conditions, the delicate dilemmas and the most intimate feeling of each woman before a unwanted or unplanned pregnancy.

*"Did the person have no way of raising a child or the father did not want to recognize it? Were they forced by their boyfriend, husband or fiancées? How many people we know that were forced to give up their child for adoption because they had no conditions of raising it? Am I saying any lies here? Those kids at the streets in Campo Grande, it's not about being pro or against abortion, no! It's necessary to see the inward of everyone. How can I get into the heart of someone who's sweet, that no one knows? How can I? Campo Grande has around 800 thousand people. Those 10 thousand women, they are about 5% of the population over those 20 and some years. That was on Dr. Neide's office, it was a medical document, it was in her office" [29, 30].*

One of the peaks of the judgment was Siufi's revelation about the lack of proof on the presumed abortions that happened at the clinic, according to the information subsidized by the expert report regarding the content of the medical reports. He stressed that the proof of crime is given by the materiality of the crime, that is, the report of the corpus delicti examination. Therefore, it is not about speculating or judging if the woman committed or not the abortion. And the material proofs, the report of the indirect corpus delicti examination did not prove the abortions.

*"There was no participation of Simone on Aline's case or in any other. There's no way to know, the reports don't prove. There's no way to know if it was DIU placement, spontaneous abortion, cyst or curettage. There's no way to know. And even in doubt there is a conviction against Dr. Simone. If she had no part, she did not participate in anything. Your excellencies will have to absolve her. Without the first accusation point all the others are harmed. And also the judicial pardon and the penalty reduction, there's no need of all that and the other accusation points. Tatiana also had no participation, nothing, from Dr. Simone. I'd like you to judge this case correctly" [29, 30].*

*Education, Human Rights and Peace in Sustainable Development*

high numerical proportion.

pregnancy.

and accentuating society's hypocrisy.

guaranteed they did not talk to her.

points by which they were being accused were not similar for all the defendants, because they were elaborated according to the participation on the facts. The prosecution persisted with the presentation emphasizing the importance of individualization of each case being judged, that is, in line with the specificity of the involvement of the defendants and meticulous analysis of the charging points on account of the

Following, they listed the accusations: abortion assistance, patient's persuasion, patient's medication with abortive drugs, among others. However, it was recognized that they did not have proof enough for five of the confessed abortion cases and that other six witnesses had not spoken about the involvement of the health professionals. It was then pointed 15 accusations made by witnesses and the judge received the request of conviction of the three nurses. One professional should be condemned for one case and participation on two abortions; the other assistant should be condemned on five cases of abortion and the third defendant for collaborating on four abortions. For the nurse was requested the condemnation on four occurrences and involvement on other five with minor participation; for the psychologist, the prosecution requested condemnation for acting on five episodes and minor participation on another four. The prosecution finished pointing out that the defendants had good nature, but would still pay for the mistakes made at the clinic, remembering that 12 out of the 13 women that alleged to having aborted declared regret. Furthermore, it was insisted that the treatment at the clinic was a system that privileged the abortion in detriment of protection of the patients or of another option on the

Only two defense lawyers requested speaking time. The first emphasized that the defendants cooperated with the investigation, but without the grants of judicial pardon like many patients attended at the clinic. He reiterated once again that the reports about the medical records does not prove the materiality of the crime and, therefore, there should be no prove, only mere assumptions. He argued that the 1988 Federal Constitution, Brazil's supreme law, requires the materiality for conviction. Lawyer Siufi initiated his speech showing one of the tv news that originated the charge: the news report recorded with a hidden camera on which his client is shown guiding a supposedly pregnant couple looking for abortion. He highlighted the illegal character of the recording from TV Morena, affiliate of Rede Globo, mocking: "a TV channel that preaches morality, see the example set by Big Brother"

Siufi's exposition was marked by questionings about the methods used for producing evidence, contradictions, arbitrariness and the lack of sustainability of the condemnations. Adding to the reading of the prosecutor about the accusation of abortion practice involving Simone Cantagessi, he alleged that the incrimination had no grounds, since there was no determining participation of the healthcare professional in many of the cases pointed out by the prosecution. Going through the testimonies of some accusation witnesses read by the prosecution, the lawyer detailed that there was no participation from the psychologist. In three cases Simone just had a talk with the patient. In one of them the accusation witness alleged to having a spontaneous abortion at home and did not look for the clinic again, on the other two, accusation related the fact that the psychologist did not induce or persuaded them about abortion. Siufi explained that it was within the competence of the psychologist to talk with the patient, being that the professional did not talk or, much less, decided and encouraged the interruption of pregnancy. "That was her job," asserted the defense. In other nine cases there was no participation of the psychologist, since the witnesses did not even mention her name or

**222**

As it was, there would be no proof of Simone's participation in any case since there was no material proof, Siufi concluded saying that "to judge you peer is not something easy" and asked the jury to vote "no" on all the first accusation question and, in that way, absolve the defendants.

*"They even say that this is the only power that men took from God's hand, because there's the power to convict and the power to absolve. I know that the late hour is tiring, but I want to say to Your Excellencies, I'll ask Your Excellencies to say no to that […] if Your Excellencies understand the condemnation and have any doubt in your mind, when it's time to cast the vote, say no to the first question […] Say no to this here, which is the portrait of hypocrisy, because it cannot be the fight between the rock and the sea and make the seashell suffer the consequences. No. But I wish that Your Excellencies say no to all the first questions: No. And after Your Excellencies leave this Court, after all the work and love given to the justice's cause, I wish the regret of having convicted four innocents do not keep you company" [29, 30].*

The judge notifies that he finished the discussions and grants the prosecutor the right to a replica, but he does not use the contestation. After that he relates to the jury that he will explain about the accusation questions on the secret room and how the procedures will take place, when he will also answer questions about "the matter of facts." The meeting was finished with "more than 600 questions," highlighted the judge, concluding to the jury: "about the questions we'll explain what the prosecutor and the defense thinks."

The trial decision happens on the next day. On April 9, 2010, 2:50 pm, the magistrate publicly advertised the decision of the jury to convict the defendants. The result of the sentence presented a negative balance for the clinic's workers: Maria Nelma was convicted to 4 years on semi-open regime; Libertina to 1 year and 3 months on semi-open regime; Rosângela de Almeida to 7 years on semi-open regime; Simone was condemned to 6 years and 4 months on the semi-open.

To finish, the judge thanks the jury, the lawyers, the prosecution and concludes the judgment. But something unusual happens, because there would still be a manifestation against the decision of the Jury closing with golden keys the scenario of "the case of the ten thousand" as a miraculous movie story. Undismayed by the final sentence, Simone Cantagessi's husband (who is also a judge) makes a touching plea and public protest, but without obtaining a favorable result, since the case had already been judged and decreed finished by the judge. On October 8, 2010, the employees from the former doctor Neide Mota Machado's clinic had their penalty reduced by the Justice Court of MatoGrosso do Sul: Maria Nelma had her penalty reduced to 2 years, Libertina was limited to 10 months, Rosângela's was reduced to 1 year and Cantagessi two.
