Estupro de vulnerável: necessidade de relativização da presunção de vulnerabilidade como meio de preservar garantias constitucionais.

Abstract

The rules of criminal law have the power to intimidate and punish all who commit unlawful acts, and such standards must be consistent with the constitutional principles and guidelines, which was not presented in the crime of rape vulnerable, by adopting legally so implicitly, the assumption of absolute vulnerability of taxpayers. In line with sexuality and their influence on Sexual Criminal Law, it is noted that the consent of the victim has the power to exclude from the typical criminal offense under discussion, meanwhile, which is shown for such consent, it is necessary to case analysis concrete, and therefore the relativization of the presumption of vulnerability. It aims to verify the effectiveness of the presumption on how to obtain the real truth of the facts, ignoring the possibility of abstract analysis of the crime, and specifically demonstrate that by adopting a valid consent, you can exclude the crime of rape vulnerable. To achieve these, it was used the method of deductive approach, the method of historical procedure, and how the research techniques and exegetical and legal literature. Thus systematize research in three chapters. Initially there is a study of human sexuality and its aspects in history, sexual behavior and its effects on Brazilian criminal law. Then, it analyzes the sexual crimes and their specificities, in accordance with the Criminal Code of 1940, and the presumption of violence in these crimes. Initially there is a study of human sexuality and its aspects in history, sexual behavior and its effects on Brazilian criminal law. Then, it analyzes the sexual crimes and their specificities, in accordance with the Criminal Code of 1940, and the presumption of violence in these crimes. Finally we will approached the rape of vulnerable, put forward by the Law No. 12.015/2009, and analyzes the consent of the victim and the type error, finally finds a breach of constitutional guarantees and principles of criminal law and criminal procedure with the adoption of absolute presumption of vulnerability in the crime of rape vulnerable. Given the above, it was asked if with the current social viability of the presumption of absolute vulnerability, the crime of rape vulnerable. As a result it will be noted that the applicability of the presumption of vulnerability is the most viable means to analyze the offense under discussion by allowing a more detailed analysis of the facts, and ensure constitutional guarantees.