UNDER THE CLOAK OF THE FAMILY: CONSENT AND THE (IR)RELEVANCE OF ESTABLISHING A FAMILY UNIT TO THE CLASSIFICATION OF THE CRIME OF RAPE OF A VULNERABLE PERSON

Abstract

The protection of the sexual dignity of children and adolescents is an important concern of the Brazilian legal system, especially considering their particular stage of development. This study analyzes the legal-criminal relevance of the formation of a family nucleus between the offender  and a person under fourteen years of age for the configuration of the crime of statutory rape, provided for in Article 217-A of the Brazilian Penal Code, with attention to consent, affective relationships and family circumstances. The objective is to examine how these elements are treated by legislation, legal doctrine and case law, especially in light of Precedent 593 of the Superior Court of Justice and the changes introduced by Law No. 15,353/2026. The research adopts a qualitative, exploratory and descriptive approach, based on bibliographic, documentary and case-law research. The results indicate that legislation and consolidated case law attribute an objective nature to the vulnerability of persons under fourteen years of age, making consent and previous sexual experience legally irrelevant to the configuration of the offense. Regarding family formation, the analyzed material indicates that Law No. 15,353/2026 reinforced the impossibility of using such circumstance to exclude the application of Article 217-A to facts governed by the new legal framework.