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This Tuesday (3), the term “guilty rape” became the most commented of the day on social networks. That’s because the The Intercept Brazil published a report on the case of Mariana Ferrer🇧🇷 The vehicle points out that the sentence was “guilty rape”.
Mariana, now 23 years old, accuses the businessman André de Camargo Aranha43 years old, of having raped her in December 2018 at Cafe de La Musique, a popular beach club from Florianopolis. She claims that she was drugged and then raped – as she was unable to give consent. This configures rape of vulnerable🇧🇷
Aranha was cleared in September of this year and, at the time, the site na+from Santa Catarina, reported that the decision of judge Rudson Marcosof the 3rd Criminal Court of Florianópolis, had taken into account the hypothesis of culpable rape🇧🇷
And what does that mean? The assumption that “no rape was intended”. In murder trials, the finding of culpable homicide guarantees the defendant a milder sentence, as the law understands that the “will to kill” is an aggravating factor. When intent is proven, homicide is intentional. That is, the version is supported that Aranha was not aware of Mariana’s vulnerability and, therefore, there was no intention of rape.
The article published months ago by the na+ did not generate much repercussion, but through the The Intercept Brazil, which is a much better known vehicle, the subject went viral. Journalist Schirlei Alves is the author of both reports and, according to her, we are facing an unprecedented sentence of culpable rape in Brazil.
After all, can we say that a rape is culpable and not intentional?
“It is not possible to talk about culpable rape, because all types of culpable crimes must be provided for by law. This is not the case. Rape is a type of crime that can only be committed intentionally,” explains Ana Paula Braga, a lawyer specializing in gender violence. In other words: either the rape happened with intent or it just didn’t happen. There is no middle ground, according to the law.
Can the aggressor commit a vulnerable rape without realizing it? This is not impossible. Example: when a teenager turns 14, the law understands that he is fully capable of giving consent to sexual acts. But what if he is 13 years old, introduces himself as older and has sex with someone of legal age? In such a case, rape would have taken place, since the text of the law leaves no doubt about the relationship between age and consent, but the aggressor would have been misled. With that, it is possible that he will be acquitted.
“The law is very clear in terms of the chances of rape of a vulnerable person. So, you have a presumption that whenever there is one of the hypotheses that the law brings, you already have to understand that she is unable to consent. And then many of the jurists and judges understand that this is a relative presumption, that it is not absolute”, says Ana Paula.
The lawyer cites cases of people with mental disabilities as an example. “We have the Statute of Persons with Disabilities, which says that people with disabilities can have sexual intercourse, that they have the capacity to do so”. As much as the law on rape classifies these individuals as vulnerable, article 6 of Law nº 13.146/15 provides that the disabled person has the right to “exercise sexual and reproductive rights”.
Ana Paula points out that there is a lot of discussion about the vulnerability of rape victims and that it is always necessary to analyze each case. In situations like Mariana Ferrer’s case, it is easy to understand the line of reasoning used to claim that there was no rape. Bars and clubs are environments where drinks, drugs and sex go hand in hand.
How much alcohol and drugs must a person consume for them to be unable to consent to sexual acts? There is no way to measure it, opening a loophole in the law. “It’s always a very subjective interpretation, it ends up being up to the judge”, says the lawyer.
And can the defendant claim that he was also intoxicated at the time of the act and therefore had no way of understanding the lack of consent? Ana Paula says no. “If a person gets drunk or takes drugs and commits a crime, that is not a cause for absolution. It’s different if, for example, she was drugged, if someone put something in her drink and then she committed a crime, ”she explains.
a dangerous precedent
Regardless of the various points of subjectivity mentioned above, Ana Paula draws attention to the fact that understanding rape as “guilty” sets a dangerous precedent. “Because of everything we’ve been claiming, that ‘it’s not no’, that if the girl is drunk it’s ‘no’. Unless it’s a very express ‘yes’, when in doubt it’s always ‘no’. Based on this assumption, there is room for reinforcing the culture of rape, for reinforcing that ‘drunk women are asking for it’.”
This warning is in line with the fact that, during Aranha’s trial, the lawyer Claudio Gastão da Rosa Filho used Mariana’s sensuality to discredit her. A video released by The Intercept Brazil it shows the lawyer presenting photos of Mariana and saying that she had posed in “gynecological positions”. “That’s the truth, isn’t it? It’s your livelihood the misfortune of others. Manipulating this virgin thing…”, he says, not afraid to humiliate Mariana in front of the judge.
Prosecutor raised the argument of lack of intent
A little commented detail about Mariana Ferrer’s case is the fact that the prosecutor in the case came up with the hypothesis that there was no intent. This was a very significant twist in the trial.
At first, the person who filed the complaint against Aranha was prosecutor Alexandre Piazza. In his view, there was rape of vulnerable, according to the allegations presented by him. Throughout the process, however, another prosecutor became responsible for the case: Thiago Carriço de Oliveira. According to na+the Public Ministry reported that “Piazza made the voluntary choice to leave the prosecutor’s office where he worked to take over another prosecutor’s office”.
O na+ reproduced page 85 of the document containing Carriço’s closing arguments on the case. In it, it is possible to see that, unlike Piazza, the new prosecutor points out that there was no malice on the part of Aranha. For Carriço, it is not possible to state that Mariana was unable to give consent that night and, therefore, there was no intention of rape.
He cites the theorist Guilherme de Souza Nucci, who talks about “type error” in cases of rape of a vulnerable person in which the victim appears to be over 14 years old. “Finally, the confusion with the type under 14 years old can eliminate the intention (it is not punished by way of guilt)”, says the quoted passage. Just below, Carriço adds: “If confusion about age can eliminate malice, why not apply the same interpretation to someone who has a relationship with a person of legal age, whose alleged disability is not known to him?”.
What we see is that, in the end, Mariana Ferrer did not have the support of the prosecutor, who is the figure that is usually on the side of the victim when crimes are judged. “The Public Prosecutor’s Office is an institution, and is made up of several prosecutors. In the process, the accusing party is the MP, not the prosecutor itself. And he might change his mind along the way. It is more common to happen when the promoter in charge changes”, points out Ana Paula.
For the lawyer, the presumption that it is not possible to assert the vulnerability of the victim should not guarantee the acquittal of the defendant. “Because there are witnesses in the case who prove that she was altered. If you are in an environment that naturally has drinking and drugs, the least you have to do is find out if the person is really in a position to consent. It was not a situation where he could never suspect that hypothesis,” she says.
The judge’s verdict
CLAUDIA had access to the judgment in the case and it is important to emphasize that the term culpable rape never appears in the text. Who speaks more directly about this is the prosecutor Thiago Carriço de Oliveira, in the excerpts quoted above – even though he also does not use the expression itself. However, Judge Rudson Marcos also deals with the lack of intent in the sentence.
The judge quotes the jurist Rogério Greco in the following excerpt from the document: “Intent is the subjective element necessary for the recognition of the crime of rape of a vulnerable person, and must cover the characteristics required by the type of art. 217-A of the Penal Code, that is to say, the agent must be aware that the victim is under 14 (fourteen) years old, or that he or she is suffering from an illness or mental disability, meaning that he/she does not have the necessary discernment to practice the crime. act, or who, for another reason, cannot offer resistance. If, in the concrete hypothesis, the agent was unaware of any of these constant characteristics of the criminal offense under study, the type error may be alleged, ruling out the intent and, consequently, the typicality of the fact”.
Just below, it says the following: “it is undoubted that André de Camargo Aranha could only be convicted of committing the crime under analysis if it remained proven that on that occasion Mariana Borges Ferreira did not have the necessary discernment to practice the sexual act, due to her vulnerability resulting from the ingestion of an illicit/unknown substance or even drunkenness”.
In the end, the judge states that there is a lack of evidence to convict Aranha for the crime of rape. “as the evidence about the criminal authorship is conflicting in itself, there is no way to impose criminal responsibility on the accused, because, repeating an old liberal saying, ‘better to acquit a hundred guilty than to condemn an innocent one’. Acquittal, therefore, is the best decision in the case under review, in respect of the principle of doubt, in favor of the defendant (in dubio pro reo), based on art. 386, VII, of the Code of Criminal Procedure”, says the sentence.
Lawyer points out alternative for resolving the case
Analyzing the case of Mariana Ferrer, Ana Paula says she believes that there was indeed rape of a vulnerable person. As we know, this is not the understanding of judge Rudson Marcos, but the lawyer points out that, instead of acquitting the defendant, he could have applied the sentence of sexual harassment🇧🇷
“If there was any doubt that it was a rape of a vulnerable person, because she did not offer resistance, it is also very clear that she did not give consent. So, in my view, the case should be downgraded to sexual harassment and not acquittal.”
She explains that, even though the process was opened with the report of rape, nothing prevents the judge from framing the defendant in another similar crime. “In the end, when the judge goes to judge, he is free to frame it differently, according to what was found in the process. Whether to frame a more serious crime or a less serious crime – as long as they are crimes of a related nature “.
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