Rape of a vulnerable person: the legitimacy of consent under the perspective of inverted conglobant typicity

Abstract

The law n° 12.015 of August 2009 introduced in the Brazilian Penal Code, article 217-A, which typifies sexual relations with a person under 14 years old, giving rise to the crime named "Statutory Rape". This paper intends to inquire about the choice of the age of consent adopted in said legal provision, seeking to understand the criteria adopted by the National Congress in establishing this age of consent, as it differs in some points from the rest of the legal system, attributing a capacity not seen in other branches of law; relating such a scenario to the theory of conglobate typicality. It is a research developed through the hypothetical-deductive method, in which, based on the developed hypothesis, investigations and comparisons were made in various branches of Law, outlining the doctrine, legal diplomas, and justification exposed on the website of the Chamber of Deputies as the object of these inquiries, exploring the (in)existence of an offense to the Legal System and its ramifications. It started with the understanding of the unity of the Legal System, and the understanding that penal typicality must coherently dialogue with the other branches of Law. Furthermore, it was questioned whether such formulation is observed in the crime under analysis, especially when comparing the age of consent adopted in other areas of national Law.