THE SYSTEMIC (IN)CONSISTENCY OF THE "VILE MOTIVE" SENTENCE ENHANCEMENT IN ART. 122 OF THE PENAL CODE: A CRITICAL ANALYSIS IN LIGHT OF VICTIM SELF-DETERMINATION

Abstract

This study critically analyzes the compatibility of the sentence enhancement based on a "vile motive" (*motivo torpe*) with the dogmatic structure of the crime of inducing, instigating, or aiding suicide, as set forth in Article 122 of the Brazilian Penal Code. It proceeds from the understanding that this criminal offense is of an indirect nature, characterized by the intervention of the victim's own will in bringing about the result; this places self-determination at the center as a structural element of the offense's definition. In this context, the study questions the appropriateness of transposing the concept of a "vile motive"—traditionally linked to aggravated homicide—to an offense whose logic is not grounded in the direct execution of the conduct. Thus, the objective is to critically examine whether the inclusion of this enhancement is compatible with the offense's structure or if it represents an inappropriate dogmatic importation. To this end, a qualitative approach was adopted—basic in nature and exploratory-explanatory in character—utilizing a narrative review of legal literature combined with a dogmatic-systematic analysis of the statutory provision. The research was based on an analysis of current penal legislation, particularly following the amendments introduced by Law No. 13.964/2019, as well as on classic and contemporary doctrinal works on Criminal Law. The reflections presented indicate that including the "vile motive" in Article 122 does not fully align with the logic of the offense, as it shifts the analytical focus from the influence exerted on the victim to the perpetrator's motivation—an element that plays a secondary role in the crime's structure. Furthermore, there appears to be a value-based overlap between the "vile motive" and the "egoistic motive," which compromises normative precision and widens the scope for discretion in the rule's application. It is also observed that the multiplicity of aggravating criteria provided for in the statute may lead to interpretive inconsistencies, potentially creating tension with the principles of proportionality and systematic coherence. It is argued that the provision classifying a "vile motive" (*motivo torpe*) as a sentence-enhancing factor in Article 122 constitutes a dogmatically questionable construct, resulting from the transposition of legal categories specific to homicide into a criminal offense of a distinct nature. Accordingly, a restrictive interpretation of this enhancement is advocated to preserve the rationality of the penal system and avoid distortions in the application of the rule.