Estupro de vulnerável: discussão acerca da vulnerabilidade absoluta do menor de quatorze anos.

Abstract

It is well known that society is always undergoing transformations in the political, economic and cultural spheres, which have repercussions in the sphere of sexuality, especially sexuality of children and adolescents, which develop faster and start each sex life time. From the time of the enactment of the Penal Code, it was already discussed whether the consent of the minor should be considered legitimate for sexual practices. As of the edition of Law no. 12.015/2009, the legislator sought to close the discussions about the subject, creating the figure of the rape of vulnerable and establishing the absolute vulnerability of the under fourteen. However, there remains the discussion even after the changes that occurred with Law 12.015 / 2009: if it was previously discussed whether the presumption of violence was absolute or relative in sexual crimes against children under fourteen, it is now discussed whether the vulnerability of minors in these absolute or relative. Under this approach, it is questioned: is the vulnerability of children under fourteen predicted in the crime of rape of vulnerable is absolute or relative? In the light of full protection, the present study aims to analyze the controversial aspects of the crime of rape of vulnerable, focusing on the analysis of the vulnerability of children under fourteen, in order to identify whether this is absolute or relative. For this purpose, the deductive method was used to understand the nature of the presumption of vulnerability of the minor in the crimes of rape of vulnerable. As a procedure, the historical method was used to present the historical evolution of the typical figure of the crime of rape of vulnerable, and the interpretive method to understand the adoption of the theory most appropriate to the Brazilian social juridical reality. The bibliographic and documentary revision were the research techniques used, in order to build the theoretical referential from doctrines, jurisprudence, journals and specialized articles on the subject.