A relativização da vulnerabilidade dos maiores de 12 anos no crime de estupro de vulnerável

Abstract

The Law no. 12.015/2009 brought considerable alteration in the Penal Code, mainly in what refers to the crimes against the customs that started to be called crimes against the sexual dignity. The same law typified the crime of rape of vulnerable one, which besides creating a new penal type, came with the intention of putting an end to the existent discussion in the doctrine and jurisprudence about the presumption of violence described in the revoked article 224 of the Penal Code. It is obvious that the law did not finish with the discussion, what we saw was the creation of a penal type based on a purely chronological criterion. Before this reality, the State became a machine of punishing, and with the Law no. 13.718/2018 that added the §5° it looked again for an end in the discussion establishing that the vulnerability of the persons younger than fourteen years old has absolute nature and all and anyone who practice sexual act with person younger than fourteen years will be punished properly with the sanctions defined in the law. The problem appears when it occurs the attempt of application of this device in a society that is replete with families formed by adolescents, be it precocious or not, this is our reality! Must the State intervene and punish the individual, leaving so an abandoned family and to allow that a child grows far from his father and any way of paternal affection? Or must it consider the vulnerability of this mother like being relative and to allow that they continue with the stable union? In our conception, the State must do from the institute of the relative vulnerability on account of the behavior of the current adolescents, in his access of the information itself, on the Statute of the Child and of the Adolescent and consider the permission of the offended one, remaining so to absolution of an accused for atypicity of the conduct. Being so, it aims to explain that the best and most just way to be followed is it of the relative vulnerability, admitting that the accused could produce proofs and guarantee the access to the proper legal process and of contradictory and full defense. For the preparation of the next study it will make use of the deductive, historical, systematic and hermeneutic methods. The procedure will make use of the bibliographical inquiry and analysis of books, scientific articles, journalistic matters, just as of jurisprudence with approach on the subject.