A mulher como sujeito ativo do crime de estupro de vulnerável: a tutela cível e penal da vítima na ocorrência de gravidez indesejada

Abstract

The present study aimed to discuss the criminal type of rape of vulnerable (article 217-A, CP) with the wording given by law 12.015 / 2009, from the historical point of view of the evolution of crimes that violate sexual dignity. focusing on the woman as the active subject of the infraction, and the controversial and relevant aspects about this conjecture. Regarding this subject, it is also necessary to discuss points that reflect the main conduct of the crime, such as the applicability of the cause of increase of the sentence of art. 234-A, III, CP to the woman author of the crime who becomes pregnant because of her own criminal conduct, and the aspects of Summary 593 recently approved by the STJ, which establishes on the eventual consent of the victim to the practice of the act, previous sexual experience or existence of a loving relationship with the perpetrator. In addition, although the legislator sought to respect the principle of isonomy at the time of constructing the legal text of law 12.015 / 2009, there are still legal gaps that show the treatment differentiated by gender of the active subject in crimes against sexual dignity. In the meantime, in analysis, it is found that the protection of the man victim of rape of vulnerable resulting in pregnancy is still an aspect to be explored in our legal system. Thus, the present work was developed, through a bibliographical research, in search of a solution to such problem, proposing to investigate the (im) possibility of the offending woman to opt for legal abortion, and the unfolding of the crime in the civil sphere.