ViolÃncia sexual presumida: sua anÃlise em face do princÃpio constitucional da presunÃÃo de inocÃncia e da capacidade de autodeterminaÃÃo sexual do menor




In recognition of the principle of freedom, in all its derivatives, as a precious legal asset which belongs to each and every individual, we intend to discuss the deficiencies inherent to the Penal Codeâs treatment of the crime of sex with a presumption of violence perpetrated against minors. We question the compability of this âpresumption of violenceâ with reference to the legal structure created by the Constitution of 1988, which expressed, as some of its founding principles, the dignity of the human being, the guarantee of personal fredom, and adopted the principle of the state of innocence as one of its most fundamental rigths, an option which blatantly discards all forms of objective responsability. By the same token, we understand that the unrestricted legal imposition of the age of 14 as the recognition point for a young personâs capacity for sexual selfdetermination is in dissonance with our historical and social reality. Especially if one considers the increasingly premature psychosexual development of youth today, this legal order constitutes, under the sponsor of a moral ideology, a disguised means of curtailing sexual fredoom. Taking all of this into consideration, we suggest legislative changes be made in the sense of excluding the presumption of violence, reducing the legal age for the exercise of sexual activities to 12, and elaborating a special penal statute meant to discipline the sexual life of youth aging from 12 to 14 years of age, time frame which is considered to be a pivotal moment for psychosexual development. We propose, in summary, to attribute more legitimacy to penal interventions in an area as intimate to the individual as his/her sexuality by way of establishing, with more precision, what is to be considered reprehensible sexual behavior in a pluralistic and democratic society such as the one we live in.


direito cÃdigo penal violÃncia sexual autodeterminaÃÃo sexual - do menor

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