What is considered rape by law?

Much has been said about rape, but this is still a very nebulous subject in the collective imagination. As if the immense lack of empathy towards the victims were not enough, most people continue to think that, to be considered rape, the sexual crime must involve forced penetration.

Big mistake! The classification of this type of crime is much broader, as shown by the Article 213 of the Penal Codereformulated in 2009. By law, rape consists of 🇧🇷compel someone, by means of violence or serious threat, to have carnal intercourse or to practice or allow the practice of another libidinous act with him”🇧🇷 The penalty – without aggravating factors – is six to ten years in prison.

Rape is NOT just the sexual act

As is often the case in legislation, the text of Article 213 leaves room for a wide range of interpretations. Ana Paula Braga, a lawyer specializing in cases of violence against women, explains that even ordinary trips on public transport can be classified as rape.

“But, despite this being very expressed in the law, we still have many legal operators unprepared to deal with this type of crime. Then they end up framing acts that are not so extreme in other criminal conducts, such as, for example, indecent harassment”.

She explains that this type of offense – indecent harassment – ​​concerns crimes of lesser offensive potential, such as street chants, for example. “It happens that when the act starts to have physical interaction [como encochada e mão na bunda], can now be considered rape. But, as it is very much at the discretion of those who are applying the law, generally the crime is not framed as such”.

Ana Paula also draws attention to the fact that, a priori, the Forced kiss can be framed as rape🇧🇷 Even so, in practice, it is quite difficult to see such aggression being penalized in this way.

In October 2016, for example, the Court of Justice of Mato Grosso (TJMT) reversed the conviction, for rape, of a man who abused a 15-year-old girl. On the occasion, he grabbed the teenager from behind, covered her mouth, threw her on the floor, ripped her blouse off and started kissing her, while pressing her abdomen with his knees. The act was only interrupted, as someone arrived in time to help the girl. Initially, the defendant was sentenced to eight years in prison, but he appealed and was acquitted.

Fortunately, the case ended up in the Superior Court of Justice (STJ), where Minister Rogério Schietti gave the verdict that the man really should be convicted of rape. According to Rogério, the judges in Mato Grosso were reckless in the face of the victim’s suffering and their decision contributed to reaffirming the culture of rape in Brazil.

Read more: What is rape culture?

It turns out that this case is clearly an exception to the rule. The fact that the crime was quite violent and that the lack of consent was explicit weighed in the decision of the STJ – with the right to witness. But we know very well that the vast majority of forced kisses happen in much more subjective circumstances.

“Usually, when women go to report something like a forced kiss, it ends up being considered offensive indecent harassment or sometimes it doesn’t amount to anything at all. [Na delegacia] they often don’t even want to register, as they think it’s not serious enough. It is a daily battle to understand that the law must be applied”, says Ana Paula.

Is the victim unable to consent? So it’s rape

Another important point when talking about sexual crimes is the so-called rape of vulnerable🇧🇷 The lawyer explains that this clause of the law considers as rape crimes involving victims under 14 years of age, those who are mentally disabled or who, in a momentary situation, do not have full capacity to react – as in the case of drunkenness and/or drug use. ; when the victim is unconscious; or when you are simply sleeping soundly.

And, when it comes to cases in which the victim is vulnerable because of the use of alcohol and drugs, those who make the complaint also end up bumping into enormous difficulty in proving rape – even when there is penetration. Ana Paula explains that the way the law was formulated opens up a huge margin for impunity, as the text never uses the word consent🇧🇷 Instead, it uses the words “violence or serious threat”.

That is: without physical signs of violence and without witnesses that the victim was out of his mental faculties during the sexual act, only the complaint ends up not being enough for the aggressor to be duly punished. In addition, the lawyer cites the difficulty of legitimizing that the psychological violence should also be widely taken into account.

“The main evidence of rape is still that collected in the forensic examination – which will assess whether the woman had sexual intercourse and whether that intercourse resulted in any injury. And I consider that a very perverse proof. Because, if the woman does not file a police report right after the rape, only then can the forensic examination be released, it is very common for the injuries to disappear. And sometimes there isn’t even an apparent injury. Then the report is considered inconclusive”.

Did he force penetration without a condom? It’s rape too

Since the beginning of the world, we have come across men who insist on not using condoms. Recently, however, the practice has been much discussed and, in the United States, there is even a term to describe the act of removing a condom without consent during sex: stealthing.

“If the guy refuses to use a condom and forces sex without protection, that’s rape. Now, if the two are already having intercourse and he removes the condom without her consent and without her knowing, this is considered rape by fraud🇧🇷 A case of this type can also be framed in the crime of danger of venereal contagion“, explains the lawyer. The penalty for sexual violation through fraud is two to six years in prison and for danger of venereal contagion is three months to one year, or a fine.

In the end, Ana Paula recommends that victims do not give up denouncing their aggressors, however much they become aware of the difficulties. “We need to encourage women to report. And we also need to work to ensure that the law is properly enforced. We know that, first of all, it is difficult for people to recognize themselves as victims, even more so when the rape is committed by someone close to them. But I always advise you to report it, because we need to fight this cycle of violence against women”.