A “idade do consentimento” e a presunção absoluta de vulnerabilidade da vítima no delito de estupro de vulnerável: uma análise à luz do princípio penal da intervenção mínima

Abstract

This article aims to analyse the Federal Supreme Court and the Superior Court of Justice’s jurisprudence, consubstantiated under jurisprudential thesis nº 593 by the latter, according to which: “The crime of rape of vulnerable configures with the carnal conjunction or any libidinous act with a person under the age of 14 years old, being irrelevant the eventual consent of the victim to the practice of the act, previous sexual experience or existence of a loving relationship with the agent.”. In order to do that, firstly, it will be done a brief historical summary, legal and sociological, about the "age of consent" until nowadays. After, it will investigate the ratio, under the criteria of historical interpretation, that originated the Law nº 12.015/2009, which had an explicit purpose of undermine the minoritary jurisprudence of then, who supported the juris tantum’s nature of the revoked art. 224, of the Criminal Code. Subsequently, it will deal with the current ruling jurisprudence, derived from the mentioned legislative change, and compare it with three trials used as paradigms in order to verify, in the light of the Minimum Intervention criminal principle, the need for criminal intervention, which would occur from the mechanical-uncritical application of the jurisprudential thesis in question. Finally, and conclusively, it will propose some parameters that judges can use to verify if, in fact, Criminal Law should intervene in absolutely all cases involving the sensitive thematic.