BETWEEN STATE JUSTICE AND PRIVATE VENGEANCE: LIMITS OF CRIMINAL LIABILITY FOR CONDUCT MOTIVATED BY THE VICTIM’S EXTREME PAIN

Abstract

This article sought to analyze the limits of criminal liability, under Brazilian Criminal Law, for conduct carried out by victims of serious crimes or by persons closely connected to them, motivated by extreme emotional pain. The study questioned the inadequacy of existing mechanisms, such as privileged homicide and the mitigating circumstance of violent emotion, to address situations in which intense suffering eliminates or substantially reduces the agent’s capacity for self-determination. A bibliographic and documentary methodology was adopted, qualitative in nature and deductive in approach, using criminal legislation, higher court rulings, and concrete cases of public repercussion as primary sources, and the doctrine of Roxin, Zaffaroni, Greco, Capez, and Bitencourt as secondary sources. The results showed that current legal instruments presuppose provocation by the victim of the homicide itself and operate only at the sentencing stage, whereas jury courts already acquit by clemency agents in analogous situations. It is concluded that the inexigibility of alternative conduct may be admitted as a supralegal ground for exclusion or mitigation of punishment, conditioned on proof of documented state failure and extreme suffering, without legitimizing private vengeance or undermining the state’s monopoly on punishment.