ON THE (IN)APPLICABILITY OF IMMUNITIES FOR PROPERTY CRIMES IN SITUATIONS OF DOMESTIC VIOLENCE

Abstract

This paper aims to discuss the application of the criminal immunities provided for in articles 181 and 182 of the Brazilian Penal Code after the enactment of the Maria da Penha Law (Law No. 11,340/2006). The Penal Code establishes individual criminal immunities for property crimes, exempting from punishment the agent who commits crimes without violence or serious threat, especially when the victims are ascendants, descendants or spouses in a conjugal society. The immunity of article 181 is absolute, while that of article 182 is relative, depending on the representation of the victim for the continuation of the process. With the entry into force of the Maria da Penha Law, which aims to protect women against domestic and family violence, it becomes evident that maintaining the validity of items I and II of art. 181 of the Criminal Code violate the principles of human dignity (art. 1, III, of the Federal Constitution), equality (art. 5, caput and item I, of the Federal Constitution), substantive due process of law (art. 5, LIV, of the Federal Constitution), exclusive ownership of public criminal proceedings by the Public Prosecutor's Office (art. 129, I, of the Federal Constitution), marital equality (art. 226, § 6, of the Federal Constitution) and the constitutional duty to prevent domestic violence (art. 226, § 8, of the Federal Constitution). After conducting a historical and contextual analysis of domestic violence in Brazil, we present and discuss the positions for and against the applicability of criminal immunities. This discussion is based on a comprehensive bibliographical research, which includes doctrines, scientific journals, case law, websites and other relevant sources. In the conclusions, despite the doctrinal divergences that still exist on the subject, the understanding of the Superior Court of Justice (STJ) in favor of the applicability of criminal immunities stands out. This understanding is based on the argument that Law 11.340/06, which deals with domestic violence, did not revoke these immunities, either expressly or tacitly. Therefore, its inapplicability could violate the constitutional principles of equality and legality. Therefore, we used bibliographic and documentary research methods, supported by laws, doctrines and articles by various authors who address this subject that is so relevant to the Brazilian legal scenario.