A presunção de violência quanto à idade nos crimes contra a liberdade sexual

Abstract

Fadng the democratization occurred in 1988 after the promulgation of the present Federal Constitution and the behavior change on the sexual area noticed during the last decades, it analyses the juridical nature of the institute of presumption of violence in crimes against sexual liberty. It reports the anachronism of the current Brazilian Criminal Code, which considers minors under 14 years old as totally unaware of sexual subjects. It studies the criminal principies of legality and "categorigality" in the light of the Federal Constitution of 1988. It examines the main aspects of the institute of presumption of violence in sexual crimes: legal hypotheses, origin and goal of the presumption of violence by age. It describes the-consent as a form of exclusion of the illicit in violent sexual crimes. It questions who can express a valid consent. It describes the main arguments of the theory that considers the presumption of violence by age as absolute and of the one that considers it as relative. From the criticism ot·the described theories, it presents the soluticrr that' better harmonizes with the legal system and with the current social reality, considering that the presumption of violence by age affronts the constitutional -princlple of presumption of innocence and also that the legal treatment of teenagers has changed after the promulgation of the Child and Teenager Statute.