A presunção de violência no delito de estupro de vulnerável e o seu afastamento pelo Superior Tribunal de Justiça: possíveis efeitos paradigmáticos

Abstract

The following study has, as its theme, the violence assumption in the crime of statutory rape, set on the 217-A article of the Criminal Code, with special emphasis on case law and detailed analysis of the decision issued on the Court’s Statute’s Recourse on the Special Appeal 1.919.722/SP. More specifically, it aims to understand the dogmatic concepts regarding the mentioned felony, starting with a brief historical approach, verifying, next, the characteristics of the said crime in its current wording, with later thorough study of violence assumption, which is a component of the referred infraction. Following, it targets to investigate where abstraction and concreteness meet, showing the case law understanding of the matter, as a way to verify, through the perceptions of Brazilian Courts, if the predominant position is for the relative or absolute character of violence assumption. In the end, it is dedicated to the exhaustive examination of the decision issued on the Court’s Statute’s Recourse on the Special Appeal 1.919.722/SP, beginning the chapter with brief notes about the concept and the origins of distinguishing, analyzing, on the sequence, the decision that excluded the violence assumption in the studied crime, therefore discharging the defendant. In order to do so, as an approach method, the hypothetical-deductive method is used, as the research would become unfeasible if done through another method that, by its own concept, aims to get to conclusions accepted as true (permanents), such as the deductive and inductive methods – and not as provisionally not-false. As a procedure method, the historical method is used, due to the brief, but meaningful historical investigation that will be done in order to comprehend what led to the current criminalization of statutory rape, as well as the structuralist method, as it allows convergence between the abstract of the criminal law and the concrete of case law understandings, while indirect documentation is the research technique used, which will be done through documental, bibliographical and case law exploration. By the end, it is expected to determine a potential possibility that the mentioned case works as a precedent, guiding Brazilian case law in the direction of carefully verifying the non-criminal effects of criminal conviction, as it can emphasize to the other Courts and judges the duty to cautiously consider all the consequences that come from a criminal sentence that finds the defendant guilty, although they are unrelated to penal laws, also pondering the influence of the Constitution on judged cases.