Relativização da vulnerabilidade etária no crime de estupro nas decisões das cortes superiores

Abstract

The Law 12.015/2009 opened a new perspective of guardianship in the Penal Code with the amendment of the nomenclature of Title VI of the aforementioned codex, which previously provided for crimes against customs and went to direct the crimes to sexual dignity and, also, with the insertion of the typical figure of the rape of vulnerable, provided in the current art. 217-A. Subsequently, in 2017 and 2018, respectively, the edition of the STJ Summary 593 and the supplementation of art.217-A with the inclusion of §5th, strengthened the constituent legislator's concern with the relevance of the topic. Such updates have contributed as a protective milestone of human dignity and sexual dignity of the public under 14 (fourteen) years, a concern with a normal development of their personality, and, above all, concern for a healthy sexual initiation, without precipitating unpredictable risks that may incur these recipients. However, even in the face of a more repressive and prohibitionist policy, in 2021 the STJ removed the occurrence of the crime of rape of vulnerable alleging the exceptionality of the particular case, using the technique of distinguishing, in view of case-specific criteria such as the possible existence of a child from the relationship, the maintenance of the love relationship, consent of the victim and, above all, the constitutional protection of the family unit. In this line, the present work has as it’s proposal to analyze how the arguments of the recent cases brought for consideration in the Plenary of the Citizen Court and the problem of the exclusion of crime, its treatment as material atypics, linking to the understanding against legem adopted by the court and, consequently, the non-observance of the rights of children and adolescents. To this goal, the research was delimited between the years 2021 to 2023, which was indicated in the analysis of the judges and, above all, the hermeneutic foundations used. For this, it has used exploratory research, whose purpose will be marked by means of bibliographic and documentary analysis procedures. In this perspective, the first chapter attempted to understand the approach of the different aspects surrounding the topic and the current debate onining the presumption of violence. In the second, a study was done on the vulnerability of minors under 14 years old, from the understanding of the innocentia consilli, and the protection of the legal good sexual dignity. Finally, the third chapter dealt with the problem of the exclusion of crime from the perspective of material atypity and a gender cut in sexual crimes. As a result of the investigation, the antinormative character and the finalist incompatibility of recent judgments with the thesis already established by the legislative amendments has been verified.