O erro no direito penal e suas implicações no estupro de vulnerável: uma análise sob a perspectiva do princípio da proteção integral

Abstract

This study proposes a discussion on the invocation of mistake of fact and mistake of law in crimes committed against the sexual dignity of children and adolescents in Brazil, from the perspective of the principle of full protection, considering the growing occurrence of such offenses. To fulfill this objective, a bibliographic review is conducted on the legal concepts of mistake of fact and mistake of law, analyzing their requirements for characterization, as well as academic, legislative, and jurisprudential productions related to the principle of full protection of children and adolescents.This proposal, beyond its general aim, includes an analysis of two decisions from the Brazilian Superior Court of Justice (STJ) and two decisions from the Court of Justice of the State of Minas Gerais, with the goal of understanding whether – and how – a mistake of fact or law was acknowledged in those specific cases. The decisions analyzed here represent only a fraction of a much broader and structural reality, which reveals the historical pattern of sexual violence against children and adolescents in Brazil. Thus, allowing, with the endorsement of the Judiciary, the impunity of perpetrators who violate the sexual dignity of this group means reverting to what Irene Rizzini refers to as the “lost century” in the protection of children and youth. It is concluded that the application of these legal concepts of mistake, especially in crimes such as statutory rape (estupro de vulnerável), must be done with strict and careful scrutiny, so that weak or artificial arguments do not serve to relativize the principle of full protection of children and adolescents. Such an approach not only ensures the effectiveness and rationality of the criminal justice system but also reaffirms the State’s and society’s unwavering commitment to safeguarding the sexual dignity of the most vulnerable—an essential foundation of a true Democratic Rule of Law.