Reflexões críticas quanto à relativização do estupro de vulnerável pelo Tribunal de Justiça do Estado de Rondônia

Abstract

The Law n. 12.015/09 established a new system for the protection of the sexual dignity of children and teenagers, replacing the old system of presumed violence, which there were differences as to the nature of the presumption, whether absolute or relative, as the concept of "vulnerable" person, considers, among others, children and adolescents under 14 years old as unable to validly consent to the sexual act. The lawgiver, in the explanatory memorandum of the aforementioned Law, evidenced that the concept of "vulnerable" has an absolutory character, and the reform is the result of a social study organized by the Mixed Parliamentary Committee of Inquiry that concluded by the vulnerability of brazilian children and adolescents. However, considerable jurisprudence has given Article 217-A of the Criminal Code the same interpretation as that of the old system, making the victim's vulnerability relative to certain circumstances that indicate innocence’s loss. This jurisprudential positioning ignores the axiological and normative change implemented by Law n. 12.015/09, and, using dialectics as a method of approach, the present work has the purpose of exposing the inconsistencies of the decisions rendered by the Court of Justice of the State of Rondonia that adopt relativization of vulnerability, making critical reflections about the three-dimensional structure of law and its implications in legal hermeneutics, which require the interpreter, in the study of the legal phenomenon, a deep analysis of the dialectical interrelations of the norm with the social facts whose normatization was required, as well as in prestige to the values listed by the social environment itself as the purpose of legal protection, so that, at the end of the legal interpretation processes, it is extracted from the legal text sense and scope that are consistent with this purpose.