RELATIVIZAÇÃO DA VULNERABILIDADE PRESUMIDA: a aplicação da Técnica de Distinção (Distinguishing) em julgados do STJ sobre Estupro de Vulnerável (2021- 2025)

Abstract

The rape of a vulnerable person, incorporated into the Brazilian legal system by Law No.12,015/2009, is one of the most serious crimes and carries the highest level of social condemnation within the national legislation. However, there are cases in which the Judiciary acknowledges the possibility of relativizing the victim’s vulnerability, thereby excluding the material typicity of the offense through the application of the distinguishing technique. In this context, the present article aims to analyze the application of this method by the Superior Court of Justice (STJ) in cases involving the rape of vulnerable persons adjudicated over the past four years, specifically during the period from January 1, 2021, to January 1, 2025, identifying the legal and factual grounds invoked in the decisions. The relevance of this research lies in both the theoretical and practical significance of the topic within the current legal framework, especially in view of the growing number of decisions that relativize the absolute presumption of vulnerability set forth in Article 217-A of the Brazilian Penal Code. Accordingly, this study seeks to answer the following research question: What legal and factual grounds have been invoked by the Superior Court of Justice to justify the application or rejection of the distinguishing technique in cases involving the rape of a vulnerable person adjudicated over the past four years? As for the methodology, the study adopts the deductive method, with a qualitative approach, employing dogmatic-legal procedures, along with bibliographic and documentary research techniques, as well as jurisprudential analysis and an examination of the relevant legislation on the subject.