A relativização do delito de estupro de vulnerável: uma abordagem sobre a interpretação jurídica à luz da legislação vigente.

Abstract

The Law nº. 12.015/09 changed the Criminal Code by removing the protection of morality and good manners, passing to safeguard human dignity person by the sexual perspective. Was created the crime of rape of vulnerable, typified in Article 217-A, consisting of having sexual intercourse or the practice other libidinous acts with a minor under 14 (fourteen) years old, establishing an objective criterion of vulnerability. From the changes made by the Criminal Code, then, deserves emphasis on the vulnerable condition of the minor of fourteen, using the criterion of the weaker, which, in the case of a minor, cannot resist, therefore, the legislator used the theory of the absolute presumption of vulnerability. Nevertheless, a legal controversy is going on since the validity of the former art. 224 of the Penal Code remained even after such changes. Nowadays, with the advent of new criminal norm the discussion is about the criterion of vulnerability, if it has relative or absolute nature. The absolute theory proved to be insufficient to resolve practical conflicts, due to its inflexibility and rigidity. On the other hand, the application of the relative theory proved to be appropriate, since it comes with changes that the society has undergone over the past few years, and their new patterns of behavior and esteem. The objective of this work is, even having discussion on the subject, to demonstrate the possibility of relativization of the vulnerability, considering various elements, such as the behavior of the victim, the circumstances in which the offense is inserted, the principle of innocence and human dignity. The work adopted as a method of approach the deductive so the issue could come to a scientific logic conclusion. Still, as a methodological procedure and the historical monograph was used. The technique explored research was the indirect source, with the bibliographic, jurisprudence and expert analysis articles. It is noteworthy that the work aims to study the issue posing the justification of the bill that led to the Law 12.015/09, the understanding adopted by native jurists and courts patriotic.