Legal, Ethical, and Political Dimensions of Ayahuasca Consumption in Brazil


Erowid recently posted an English translation of a 2005 article that addresses the ethical, political, social, ecological, and legal questions that have emerged from ayahuasca’s expansion into non-indigenous usage. 

via Erowid:

Introduction

This article investigates the relationship established between the Brazilian ayahuasca religions and civil society, considering especially the ethical, political, social, ecological, and legal questions that have emerged as the consumption of this psychoactive beverage, originally restricted to the Amazon region, has expanded and become integrated into a broader national context. The use of psychoactive plants by indigenous and other rural Amazonian populations generates little controversy, but this is not the case for the non-indigenous urban religions that use the same substances.

The word ayahuasca is derived from the Quechua language. According to Luna (1986), aya means “dead person, soul, spirit” and waska means “cord, liana, vine”. Thus, ayahuasca could be translated as “vine of the soul” or “vine of the dead”. Indeed, during my own fieldwork in Pucallpa, Peru, I encountered people using the local terms soga de muerto and soga de los muertos: “vine of dead”. In some Portuguese-language internet sites, and even academic publications, one finds ayahuasca translated as “wine of the soul/of the dead”, apparently owing to a confusion in translation between the similar words vinha, “vine” and vinho, “wine”; at any rate this new translation, even if erroneous, provides a seductive poetic element that enthusiasts appreciate.

Ayahuasca is, generally, a drink prepared from the liana Banisteriopsis caapi and leaves of the shrub Psychotria viridis, to which diverse other plant admixtures may be added. In Brazil, the same beverage (with slight variations in preparation and concentration) is known by various names and is used in diverse contexts: by indigenous societies, among rubber-tapper and riverine Amazonian populations, and by the so-called “Brazilian ayahuasca religions”, consisting of three main groups; namely, Santo Daime, Barquinha and União do Vegetal (UDV). Santo Daime was founded by Raimundo Irineu Serra, or Mestre Irineu, in the 1930s in Acre, and today is divided among two main branches: Alto Santo and CEFLURIS or ICEFLU, the latter established by Sebastião Mota de Melo. (For the remainder of the article when I mention “Santo Daime”, I will be referring to the CEFLURIS branch, which has spread widely throughout Brazil, in contrast to the much smaller Alto Santo tradition, found only in Acre). Daniel Pereira de Mattos founded Barquinha in the mid 1940s in Rio Branco. José Gabriel da Costa in Rondônia founded the UDV, known formally as “Centro Espírita Beneficente União do Vegetal”, in the early 1960s.

Although indigenous and non-indigenous shamans and healers in the neighboring Amazonian countries of Peru, Colombia, Venezuela, Ecuador, and Bolivia use ayahuasca in both rural and urban contexts, it is only in Brazil that the beverage has been incorporated into fully elaborated new religious traditions of essentially Christian orientation. Beginning in the 1970s, both UDV and Santo Daime expanded to important urban centers in Brazil, and since 1990, both have gained followers in Europe and North America.


First, I will define the outline of the legal parameters surrounding illicit substance use in Brazil, and contextualize ayahuasca in relationship to these laws in Brazil and internationally. I will also refer to pharmacological studies on ayahuasca, since legal discourses have relied heavily on biomedical research. Next, I will trace the historical trajectory of ayahuasca’s regulation in Brazil; beginning with the first controversies involving ayahuasca groups; moving on to the initial, temporary prohibition of its use and successive attempts to outlaw it; and arriving finally at the most recent developments.

From this legal discussion, I will move on to another fundamental dimension implicit in the expansion of ayahuasca groups: the dangers of overharvesting of the plant species present in the brew, and governmental attempts at regulating their extraction from forests. I will also examine the relationships established between the UDV and the Santo Daime especially, and the news media and civil society; revealing important information about the ethos of these groups and about the popular imagination surrounding the consumption of ayahuasca. Finally, I will show how the expansion of ayahuasca religions in Brazil is tied to a broader context of international expansion, raising additional questions and problems.

Ayahuasca and Brazilian and International Drug Legislation

In Brazil, the new Antidrug Law 10409/02 went into effect on the 27th of February, 2002, partially revoking the previous Law 6368/76 of October 21, 1976, that had established methods for preventing and repressing the trafficking and improper consumption of intoxicating drugs. Yet, because articles 14 and 26 in Chapter 3 of the new law, “On Crimes and Punishments” were vetoed, the previous law’s stipulations on these matters remain. The coexistence of both the old and the new laws has led to debates and confusion owing to various problems and technical inaccuracies found in the older law. Law 6368/76 has been criticized by various sectors of society for criminalizing the user, for not establishing a clear enough distinction between users and traffickers, and for not differentiating penalties according to the substance involved. Some of these central points remain unchanged in the new Antidrug Law 10409/02 due to the veto of the third chapter. How did this come to be?

At the end of 2001, after ten years of debate, the Brazilian Congress approved a draft project for Law 1873 of 1991. This draft went into effect as Law 10409 of 2002, which received several vetoes from the Brazilian president. An important innovation in this law was to replace prison sentences for users with social-educational measures. Another significant alteration was the possibility for alternatives to prison sentencing for traffickers, including revoking of the driver’s license, treatment and rehabilitation programs, community service, etc. However, the new law did not provide an estimate of the duration for such alternative punishments. For this reason, the president, based on an evaluation by the Ministry of Justice, vetoed articles 1 and 3, arguing that such lack of clarity would cause enforcement and policing of drug laws to be weakened, as well as leading to conflicts of jurisdiction between the Health and Justice ministries. Furthermore, if these articles remained after the entire chapter on “Crimes and Punishments” had been vetoed, the result would be a de facto liberalization of drug use: every law proposes a sanction for non-compliance, and the lack of a sanction would imply that drug use was no longer criminalized.

Draft Law 6108 of 2002, proposed by the executive branch, aimed to revoke all contradictory measures, especially Law 6368/76 and Law 10409/02. It established new terms for alternative sentencing and special non-criminal legal standing for users, who could be eligible for these alternative sentences, as opposed to traffickers, who would not. However this law encountered similar problems found in the long debates over draft Law 1873/91, notably with regard to an end to prison sentences for users. The 2002 draft law allowed alternative sentences for users, but also provided for a conversion to prison terms if treatment and community service obligations are not met. This law’s effort to decriminalize2 the user aims to establish in Brazilian law a tendency already found in countries like Spain, Switzerland, and Portugal, and that has been under discussion since the 1970s. Yet, while for some, decriminalization of the user is interpreted as progress, for others it is seen as a step backward. For example, the new regime of control would transform the criminal into a sick person; not a true transformation but merely a shift in the focus of stigma and persecution. According to Rodrigues (2004), the user is no longer a criminal to be captured by the net of the prison system, but rather a poor victim of addictive drugs, who must be supported, taken care of, and treated; another circuit that tracks, confines, and coerces. Traffickers, generally coming from the “dangerous underclass” of people of color and immigrants, remain targets for the repressive state apparatus with support from the public who fear for the safety and health of their children.

Article 12 of Law 6368/76, which is still in effect, established penalty terms with precision but does not provide a complete definition of the criminal offense to which it applies. The article does not even define which drugs are considered narcotic or addictive, and hence subject to punishment under this article. For this law to function, this lacuna must be filled with complementary regulations. The definition of which substances are considered illicit or subject to controlled use was passed on to the Health Ministry (Fiore 2002). Previously, it was up to the medication division of the Health Ministry (DIMED) to list narcotic and addictive substances. These lists are not fixed or permanent, but rather subject to periodic revision. Law 9782 of January 26, 1999 (previously Provisional Presidential Decree 1791 of 1998) created the Agency for Sanitary Inspection (ANVISA), to which this responsibility was assigned. According to resolution 228 of December 11, 2001, ANVISA’s advisory board is charged with publishing and updating the list of controlled and proscribed substances. The new Antidrug Law of 2002, however, does not change the division of labor between the ministries of Justice and Health. Yet, in the last instance, it is the Health Ministry that is charged with liberalizing or prohibiting substances, implying “an institutional role of medicine in guiding public policy on drugs” (Fiore 2002). The responsibilities and apparatus for preventing improper use of narcotic substances, treating addiction, and repressing production and trafficking all fall upon the National Antidrug System (SISNAD), which includes federal, state, and municipal government offices involved in activities relating to these goals. The National Antidrug Council (CONAD – Conselho Nacional de Políticas sobre Drogas), set up by Provisional Presidential Decree 1689-4 of September 25, 1998, replaced the former CONFEN (the Conselho Federal de Entorpecentes, or Federal Drug Council) of the Justice Ministry. CONAD is a regulatory body formed by a board tied to the Cabinet of Institutional Safety for the President’s office, and is composed of representatives of diverse governmental and non-governmental entities. SENAD, the National Antidrug Secretariat, created in 1998, functions as the executive secretary to CONAD. SENAD is responsible for government prevention policies regarding narcotics and related substances, while the Federal Police are responsible for coordinating control and repression.

On the international stage, Brazil is signatory to various international conventions and treaties on drug control, including: 1) the United Nations Single Convention on Narcotic Drugs, signed in New York in 1961; 2) the Convention on Psychotropic Substances established in Vienna on February 21, 1971; 3) and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, also concluded in Vienna on December 20, 1988. These conventions present lists that identify drugs according to somewhat vague “degrees of danger” that imply varying degrees of strictness in prohibition. In the second Convention, DMT (a substance found in the leaves of the ayahuasca ingredient Psychotria viridis) is found under category 1, which refers to the most restrictive category of substances including LSD, psilocybin (magic mushrooms), MDMA (“ecstasy”), and mescaline (peyote, San Pedro).

DMT, typically smoked in glass pipes or water bongs,3 gained popularity in California in the mid-1960s. For this reason, the earlier 1961 Convention does not mention this substance. Between 1966 and 1970, several American states declared it illegal until, in 1970, the American federal government included DMT under Schedule 1 (the U.S. system of drug scheduling is similar to the U.N.’s). The U.S. was the first country to declare DMT illegal. Soon afterwards, other European governments followed suit (Stafford 1992).

Read the full text here.