A possibilidade de relativização da presunção de vulnerabilidade em relação ao menor de 14 anos de idade e maior de 12 no crime de estupro de vulnerável

Abstract

It is analyzed the possibility of relativizing the presumption of vulnerability in relation to the under 14-year-old minor and the over 12 minor on vulnerable rape crime. The presumption of vulnerability based on the age of victim is carved out on article 217-A from Penal Code, which typifies vulnerable rape crime and was instituted by Law nº 12,015 of 2009. Among other innovations, that law revoked article 224, “a”, which provided expressly the idea of presumption of violence in cases of intercourse with a under 14-year-old minor, bringing up doctrinal and jurisprudential discussions and controversies about the nature of this presumption: whether absolute or relative. However, the revocation of that article and creation of criminal type of vulnerable rape did not end this controversy that lasts until today. In this context, the present work craves to demonstrate that in exceptional situations the vulnerability relativization should be glimpsed, always emphasizing the need of victim to be maximum aged 14 and at least 12, as well as other requirements that corroborate the validity of consent of the supposed offended. Deductive, comparative and theoretical methods were used, based on doctrinal and jurisprudential studies. It is concluded that the crystallization of a precept, that a 14-year-old minor must be considered absolutely vulnerable, as well as the criminalization of a conduct without any damage to the legal good protected, affront principles of Criminal Law and can entice in unjust condemnations.