Estupro marital: análise jurídico-social face os reflexos histórico-culturais..

Abstract

The present paper aims to analyze the crime of rape of the article 213 of the Penal Code, under the constancy of marriage. It is justified for its extreme relevance and complexity, taking in consideration that the crime brings reflexes of a society that has long omitted and punished the woman figure, causing them a condition of vulnerability inside their own homes. In this perspective, marital rape is a violent practice in which one of the spouse using aggressive means forces the victim to satisfy its sexual desires under the justification of the obligation sex in the marriage constancy. In order to demonstrate the evolution of the legal rule about the protection of sexual freedom from the Hammurabi Code to the current legislation. It should be added that with the advent of Law n°. 12.015/09, the protective milestone begans for women who are victims of sexual assault in the family context, resulting in the possibility of the aggressor spouse figure in the passive pole of a lawsuit. Considering the mechanisms established by the Maria da Penha Law (Law No. 11,340/06), organized in a Protection Network which acts to prevent and protect violence against women. Under this approach can it be said that historical and cultural reflexes are preponderant factors in the criminalization process of marital rape? As a hypothesis: Yes, the historical-cultural reflexes represent the greatest obstacle to women in application of their rights as victims of marital rape crime, considering the social context is full of patriarchy precepts represented by disbelief in the victim and a culture of rape, leading to the legalization of violent behavior inside home. Thus, the present paper uses the deductive approach method. The problem approach it is a qualitative research and research techniques use bibliographic and documentary research as well as the historical-evolutionary as a procedure method. Moreover, despite all normative developments the crime of rape is difficult to verify due to the historical and sociocultural influence performed on the foundations of society and because it is a conduct that occurs inside homes, which interfer its proper investigation and repression. It is importante to note that for suffering the ancestral influence of patriarchy, women do not identify certain abuses and therefore do not denounce them. Thus, when there is knowledge of the abuses there are many obstacles as well to make the respective denunciation due to the abusive spouse. It is also importante to note that in addition to the aspects mentioned the disbelief in the judiciary and the shame of social judgment corroborate the fact of the crime remains alive nowadays and far from judicial protection.