Disregarding presumptive violence in case of rape of a minor under 14 with a constituted family unit

Abstract

Sexual crimes naturally enable conflict between legal scholars, as a result of emotions and opinions from society in general. No sexual relationship is free from judgment and analysis. With society's constant change, the legislator is directed to be strict in order to protect the protected legal interest, seeking to penalize in a rigid way whoever attacks the sexual dignity of the vulnerable, seeking the dignity of the individual who suffers sexual crimes. The chosen theme is rape against the vulnerable minor. Before the law nº 12.015/2009, there was a modification in the structure of the Penal Code including the figure of the Rape of Vulnerable, before it had the title of crimes against customs, today it is in the title of crimes against sexual dignity. Therefore, the vulnerable is described in article 217-A of the Penal Code: under 14 years old, someone who, due to illness or disability, does not have the discernment to practice the sexual act or someone who for some reason is unable to offer resistance. Thus, we will analyze the relativization of the presumed violence of rape of a vulnerable person under the age of 14, resulting from the family constitution, this brings consequences and impacts to the legal system, with the weighting of legal interests, and so far this weighting would not fit, and thus we see the duplicity of jurisprudential understanding within a peculiar case with an impossible direction. Systematized bibliographic research was developed, using legal texts of temporal cut dating, as a basis for jurisprudence on the subject. The objective is to analyze the disregard of the presumed violence in the case of rape of a minor under 14 years old with a constituted family nucleus, a decision rendered in the Agrave Regimental in Special Appeal under nº. 1919722 SP 2020/0307577-5. We will verify the consequences and impacts resulting from the disregard of the presumed violence in the case of rape of a minor under 14 years old with a family nucleus. Thus, it is considered that, through the application of the theory of objective imputation, the possibility of analyzing the concept of vulnerability in a relative way should not be accepted, nor should Brazilian criminal legislation adapt to the unstable social reality. Thus, in order to prevent the realization of irreparable injustices, considering Criminal Law, it is not appropriate to ratify immoral conduct, but to regulate offenses to relevant legal interests.