A panel of judges at Brazil’s Superior Appellate Court (Superior Tribunal de Justiça – STJ) recently ruled that a man was not guilty of rape after he had sex with three girls, all aged 12, because they were already prostitutes.
The head of the Secretariat of Women’s Affairs, Aparecida Gonçalves, was shocked. “This not only banalizes rape, it authorizes it. The Judiciary is authorizing rapists to do this. That is very grave,” she declared.
The minister of Human Rights, Maria do Rosário, was up in arms. She said she would put the nation’s chief prosecutor and the head of the office of government attorneys (“procurador-geral da República,” Roberto Gurgel, and the “advogado-geral da União,” Luís Inácio Adams, respectively) to work on the case immediately.
According to Maria do Rosário, the decision used relativity as a point of departure, based on the argument that children of 12 who already had sexual lives did not have their rights violated.
“The sentence shows that the victims were judged not the person who was charged with the crime,” she declared, adding, “The penal code makes it clear that there is presumed violence when a child of less than 14 is involved.
“This decision by the STJ opens a path to impunity. We are very upset about this, but conscious of our duty. We shall analyze the situation with the heads of our government prosecutors and the office of attorneys, Gurgel and Adams, and decide on a position and what action we will take,” declared the minister.
Meanwhile, the minister of Justice, José Eduardo Cardozo, pointed out that court rulings have to be respected, even when you disagree with them. “As a student of the law, I am against this ruling, but it is a decision by the STJ. I don’t know if it will be maintained. We have to wait for a final decision.”
The Chief Justice of the court where the decision was made, Ari Pargendler, admitted the decision could be reviewed and changed. “This is a complicated issue and was decided by a panel of judges at the court. It is the word of the court, but, evidently, every case is different and the court is always willing to review judgments. Maybe that will happen.”
However, the STJ chief justice pointed out that the ruling was based on a technicality and that such decisions were not always understood by the population.
“In penal law, the overriding principle is strict legality. Judges do not create law, they apply it. With that in mind, I hope people will understand the decision by the Terceira Seção, in this concrete case, and comprehend it,” declared Pargendler.
The STJ has six panels of five judges each that are divided into three sections with ten judges each. The Third Section consists of the fifth and sixth turmas, but at this moment there is a vacancy in one of the turmas so that it was probably a panel of nine judges, instead of ten, who ruled in this case.
The majority opinion in the case was written by the Chief Justice of the sixth turma who is a woman, Maria Thereza de Assis Moura – she is called the “relator.”
Brasília – A panel of judges (“Terceira Seção”) at Brazil’s Superior Appellate Court (“Superior Tribunal de Justiça – STJ”) recently ruled that a man was not guilty of rape after he had sex with three girls, all aged 12, because they were already prostitutes.
The decision followed a lower court ruling that the man was innocent because the girls, although only 12 years of age, “had already practiced sexual activities for a long time.”
In its ruling, the Terceira Seção said that there was no crime where a specific right was not violated; that is, because of the reality of the girls’ situation, their sexual liberty was not defiled.
There is a precedent: in 1996, an associate justice of the Supreme Court ruled that in the question of rape of a minor the presumption of violence could be relative.
[Usually known as statutory rape in English, sexual assault of a minor differs from forcible rape in that physical force or verbal threats are not necessarily present. Coercion is presumed for the simple reason that a minor is considered incapable of giving consent.
There are normally two lines of mitigation for the defense. It can be alleged that the victim was believed to be over the age of consent. Or, in a more limited number of cases, when the accused is not much older than the victim (usually up to three years of age difference) the penalty will be less severe under what is known as the “Romeo and Juliet clause.”
The jurisprudence in cases of carnal knowledge of a minor usually does not embrace the idea that circumstances in such a case could be “relative,” as in the overwrought logical rigor of the Supreme Court justice Marco Aurélio Mello, or that the situation depends on the “reality” of the people involved, as cited by Maria Thereza de Assis Moura of the STJ.]
Government authorities have been in an uproar because of the implications of the rulings. In less than two months, Brazil will host the United Nations Rio+20 Sustainable Development Conference. Next year, the Confederation Soccer Cup. In 2014, the World Soccer Cup. And in 2016, the Olympic Games.
