Da possibilidade de relativização do estupro de vulnerável em caso de vítima maior de quartoze anos.

Abstract

Due to the introduction of the art. 217- A, the Penal Code, ensuring absolute character of the crime of rape committed against a minor under 14 in where the taxpayer will always be those who lack the capacity for discernment on the acts and consequences of their sexuality, and the subject does not have the opportunity to show proof to the contrary, it is necessary to note, that according to the proposed research problem: there is a possibility of relativizing the nature of this vulnerability, taking into account the behavior and characteristics of the active subject, and the social environment in which they currently live? The discussions that guide the changes brought about by art . 217- A, CP, are at their absolute character, or iuris et de iure, which relates to conduct that admits no proof to the contrary; in contrast to those who argue that rape committed against older than 12 years and less than 14 are considered vulnerable, must be viewed in relative terms, or juris tantum, admitting evidence to the contrary. This thread permeates the legal framework since the validity of Article 224, CP, repealed that rested on the understanding of the presumption of violence and applies to cases involving sexual acts with children under 14, this presumption was intended by the legislature to treatment of absolute and independent form of consent from the minor. In this sense, this research aims to examine the possibility of application of relative vulnerability, in order to contain the damage caused by the absolute character of Article 217 -A, principles and means of constitutional defenses and thereby avoid the anticipated guilt attributed to the agent accused of raping vulnerable. For this, it employs the method of hypotheticaldeductive research, aided by the historical evolution. Uses the technique of literature. Investigative studies are developed in light of the constitutional principles of the process, without neglecting the necessary interpretative timeliness.