Danielle Jinkings         Reporter Agência Brasil     [contains translator’s note]

Brasília – A panel of judges (“Terceira Seção”) at Brazil’s Superior Appellate Court (“Superior Tribunal de Justiça – STJ”) recently ruled that a man was not guilty of rape after he had sex with three girls, all aged 12, because they were already prostitutes.

The decision followed a lower court ruling that the man was innocent because the girls, although only 12 years of age, “had already practiced sexual activities for a long time.”

In its ruling, the Terceira Seção said that there was no crime where a specific right (“bem juridico tutelado”) was not violated; that is, because of the reality of the girls’ situation, their sexual liberty was not defiled.

There is a precedent: in 1996, an associate justice of the Supreme Court ruled that in the question of rape of a minor the presumption of violence could be relative. 

[Usually known as statutory rape in English, sexual assault of a minor differs from forcible rape in that physical force or verbal threats are not necessarily present. Coercion is presumed for the simple reason that a minor is considered incapable of giving consent.

There are normally two lines of mitigation for the defense. It can be alleged that the victim was believed to be over the age of consent. Or, in a more limited number of cases, when the accused is not much older than the victim (usually up to three years of age difference) the penalty will be less severe under what is known as the “Romeo and Juliet clause.” 

The jurisprudence in cases of carnal knowledge of a minor usually does not embrace the idea that circumstances in such a case could be “relative,” as in the overwrought logical rigor of the Supreme Court justice Marco Aurélio Mello, or that the situation depends on the “reality” of the people involved, as cited by Maria Thereza de Assis Moura of the STJ.]

Government authorities have been in an uproar because of the implications of the rulings. In less than two months, Brazil will host the United Nations Rio+20 Sustainable Development Conference. Next year, the Confederation Soccer Cup. In 2014, the World Soccer Cup. And in 2016, the Olympic Games. 

Allen Bennett – translator/editor The News in English

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