O estupro de vulnerável e a consolidação do entendimento da presunção de vulnerabilidade absoluta

Abstract

This study aims to bring the discussion related to the consolidation of the understanding regarding the absolute presumption of vulnerability in the Brazilian legal context, which took place substantially under jurisprudencial thesis nº 593, reproduced in the most recent amendment of the Penal Code, by Law nº. 13,718 / 2018. This change added paragraph 5 to article 217-A, which reiterates that “The penalties provided for in the caput and paragraphs 1, 3 and 4 of this article applies regardless of the victim's consent or the previous sexual experience”. In order to that, firstly it will be done a brief historical recovery, as well as an analysis of the social and political aspects that foster sexuality itself, seeking to clarify what are the mechanisms that act to promote a true penal management of sex. Subsequently, it will deal with a more thorough examination of the criminal law, seeking to demonstrate several inconsistencies in the legal system regarding the vulnerable children’s under 14 years rape. Finally, some concrete cases will be analyzed to illustrate that the cold and direct application of criminal law as it stands, without consideration of singularities, can lead to intense arbitrariness.