SEXUAL IMPORTUNATION VS. VERBAL HARASSMENT: INSULT AS AN ALTERNATIVE TO THE ATYPICALITY OF CONDUCT IN BRAZILIAN CRIMINAL LAW

Abstract

This article aimed to analyze the dogmatic consequences of Law No. 13.718/2018 on the legal classification of strictly verbal sexual harassment. The research investigates the normative vacuum generated by the repeal of the misdemeanor of Offensive Importunation to Modesty and the creation of the crime of Sexual Importunation (Art. 215-A, Penal Code), which requires corporeal materiality. Through bibliographical research and a deductive method based on criminal dogmatics, the study demonstrates the incompatibility of this criminal offense with purely verbal infractions, criticizing the use of in malam partem analogy that violates strict legality. As a result, it is proposed to apply the Principle of Subsidiarity, rescuing Nelson Hungria's "reserve soldier" thesis, in which sexual verbal aggressions are residually subsumed under the crime of Insult (Art. 140, Penal Code). It is concluded that shifting the axis of protection from sexual freedom to subjective honor preserves the garantist dictates of the Democratic Rule of Law, leaving it exclusively up to the legislator to create an autonomous criminal offense for said conduct.