Violência sexual e vulnerabilidade: implicações jurídico-penais da prática de ato libidinoso contra pessoas em estado de sono

Abstract

The crime of rape of a vulnerable person, provided for in article 217-A of the Brazilian Penal Code, gives rise to sensitive doctrinal and jurisprudential reflections. As the treatment of vulnerability affects this crime is unclear, we sought to analyze, in light of the current criminal law, whether those who were targets of libidinous acts when they were in a state of sleep would be considered vulnerable, in order to subsumption of article 217-A, § 1 occurs. Making use of the deductive method of approach, monographic method of procedure, also combining bibliographic and documentary research techniques, it was found that a person's responsiveness to sound, visual, tactile and painful stimuli is considerably reduced or even abolished during sleep, especially during the deepest stages of sleep. In this sense, it is possible to conclude that sleep characterizes the vulnerability referred to in the criminal type of art. 217-A, § 1, of the CP, as the characteristics of this physiological state reflect the inability of the victim to reveal her dissent regarding the libidinous act carried out against her in this situation