RAPE OF A VULNERABLE PERSON: THE IRRELEVANCE OF CONSENT FROM A VICTIM UNDER 14 YEARS OLD AND CONSTITUTIONAL PRINCIPLES

Abstract

Brazilian criminal law defines the crime of statutory rape in Article 217-A, with harsher penalties due to the severity of committing a sexual or lewd act against a victim who is incapable, under 14 years old, and lacking sufficient understanding to give consent. However, the speed with which children and adolescents have been integrated into community life raises questions about the development of these individuals, especially their ability to understand their sexual desires. In this context, a question has emerged in the legal field: is it necessary to assess the consent of a victim under fourteen in the crime of statutory rape to establish vulnerability? To address this debate, the research's main goal is to study the crime of statutory rape and the elements that define the vulnerability of a victim under 14 according to the law, discussing the relevance of consent and the presumption of as constitutional principle. Through a bibliographic study and the use of the qualitative method of content analysis, the research ultimately shows that the jurisprudential understanding adopted by the higher courts is that the consent of a victim under 14 years old is irrelevant, with absolute vulnerability being an element of the criminal offense.