Law 12,015, of 2009, defines rape as “compelling someone, by means of violence or serious threat, to have carnal intercourse or to practice or to allow another libidinous act to be practiced with him”. This can include various offenses (see below). The original law on rape dates back to 1940 and was last reformed in 1990, when the crime became heinous. In this new amendment, the main changes were the understanding as “rape” even for acts in which there was no penetration and the removal of the term “woman”, so that the law now applies to all genders.
The fact that it is a heinous crime implies that it is non-bailable – which does not mean that the suspect cannot be released by other means, such as habeas corpus and provisional release. Despite several parliamentary projects in this regard, there is still no exclusive and more severe law for the practice of collective rape. When this occurs, the defendants are tried individually.
It is worth knowing: since 2013, law 12,845 obliges the SUS to provide emergency care to all victims, including offering treatments, pills against HIV, tests and even abortion. Oh, and if the accusation is proven to be false, the defendant is released and the accuser is indicted in crime 329 of slanderous denunciation.
1. To be considered rape, the act must have a sexual nature, such as touching the genitals or pinning someone against the wall. A caress of the hair, for example, as unwanted as it may be, does not fit. If, even so, the victim wants to file a police report, those responsible for the next stages of the case must agree with the victim. This includes the delegate, who will open the inquiry, the prosecutor, who will register the complaint, and the judge, who will pass judgment on the final sentence.
two. Just the woman’s word against the aggressor is enough for an investigation to be opened, but to support the accusation, at least one piece of evidence is needed. Ideally, a corpus delicti examination should be carried out immediately after the act. As it needs to be requested by an authority, such as a delegate or prosecutor, it is important that the victim makes the complaint. The use of recordings and witness statements can also help.
3. The judge in the case may disagree with the condition of rape. In August 2017, a man ejaculated on a woman on a bus in São Paulo. At the custody hearing of the case, the judge in charge understood that “there was no violence or embarrassment” and, therefore, it was not rape, but rather “annoyance offensive to modesty”. This episode triggered several discussions about the subjectivity of the law. This is because there are crimes such as sexual harassment (which can only occur in the workplace) that can be easily confused with rape. But also because there are judges who are unprepared to deal with the situation
4. The Penal Code provides for three penalties for rape: from six to ten years in prison for simple cases; eight to 12 years if the conduct resulted in serious bodily harm or if the victim is aged between 14 and 18; and from 12 to 30 years if the victim dies. There are still some aggravating factors that can increase the sentence, such as the rapist being a family member or the crime causing pregnancy.
5. If the perpetrator is a minor, these penalties do not apply. If he is under 12 years old, there is no punishment, only protective measures (to prevent him from being punished). If he is between 12 and 18, socio-educational measures are applied, which can range from warnings to hospitalization in foundations
6. If the victim is under 14 years old, the crime becomes “rape of a vulnerable person” and is punishable by eight to fifteen years. The law understands that, below that age, the child does not have the discernment to consent to any sexual practice. Therefore, it is always a crime. Oh, and it’s worth remembering: despite being widely publicized by the media, there is no such thing as the crime of “pedophilia”. This term refers to a mental disorder that can result in a crime (rape of vulnerable) or not
How to report a rape crime
1. The first step is to quickly look for the nearest police station. If you prefer, there are police stations specialized only in women throughout Brazil
two. At the police station, the police report will be made, which will open the investigation against the aggressor, in addition to an immediate referral of the victim to the IML, where the corpus delicti examination is carried out.
3. If you don’t want to go to a police station immediately, the female victim can also call the Women’s Assistance Center (180). There she will receive immediate support and guidance for the next steps.
4. After the complaint, the victim can still request a police escort to their residence if they feel threatened.
5. Even after the complaint is made and the medical care provided, the victim often still needs support. For this, there are host networks throughout Brazil, which provide psychological and emotional support. Find them at mapadoalhinho.org
CONSULTANCY Patricia Vanzolini, criminal lawyer
SOURCES Legal Bulletin, Government Plateau, G1, Carta Capital, Legal Scope, El País