A ilegitimidade das presunções absolutas no crime de estupro de vulnerável contra vítima menor de 14 anos

Abstract

The objective of this study is to analyze the evolution of the criminal type of presumed rape under the age of 14 to the rape of vulnerable persons, provided for in Law 12,015 of August 7, 2009, especially against victims under 14 years of age. A critical analysis will be made of the adoption of absolute presumptions in the referential case, since the chronological criterion adopted by the legislator is mere liberality, without any adequacy to the social reality and to the specific case. It is also a clear violation of basic precepts of criminal procedure, also representing a direct offense against the rights and guarantees granted to those who respond to criminal proceedings. If the presumption of rape is based solely on the element of age, the possibility of producing evidence to the contrary is removed from the defendant, a situation which poses a serious threat to the principles of presumption of innocence, contradiction, social adequacy , offensiveness and lesivity.