STJ candidate acquitted accused of raping 13-year-old girl – 08/19/2023 – Panel

Supported backstage by Minister Alexandre de Moraes (STF) for a seat on the Superior Court of Justice, Judge Airton Vieira, of the São Paulo Court of Justice, voted for the acquittal of a farmer accused of raping a 13-year-old teenager.

The argument was that it was “believable” that the man, aged 76 at the time, could have been mistaken about the victim’s age.

According to the Penal Code, the crime of rape of vulnerable covers any sexual act with children under 14 years old.

The case was registered in Pindorama (SP) in February 2011. The farmer was spotted in a pickup truck with the 13-year-old victim and another 14-year-old teenager. sexual. According to both, the minor would have informed the farmer about her true age.

In the decision, Vieira, the case’s rapporteur, said that “one cannot lose sight of the fact that on certain occasions we can find children under 14 (fourteen) years old who appear to be older, especially in cases where they engage in prostitution, use substances narcotics and ingest alcoholic beverages, because in such cases it is evident that not only the physical appearance but also the mental one of these minors will differ from what is commonly seen in young people.”

Because of this, he argues that he could not justify maintaining the defendant’s conviction. “It is quite true that he is under 14 years old, but I believe that it is credible and plausible, given what happened, that the defendant was mistaken about the victim’s real age”, he adds.

Wanted, the magistrate said he could not manifest. However, he sent what he called technical explanations on the topic.

According to him, in the 2014 appeal, the farmer was acquitted “due to the adoption of a criterion widely disseminated in jurisprudence and doctrine (recognition of the ‘type error’), through which the circumstances of the concrete case (physical complexion, victim’s consent and any previous sexual experience) could be able to rule out the absolute vulnerability of crimes involving minors under 14.”

He indicated that, on the occasion, STF precedents of ministers such as Marco Aurélio Mello, Luiz Fux, Teori Zavascki and the doctrine of Guilherme de Souza Nucci were mentioned. “The judgment was unanimous as to the acquittal of the defendant, despite the fact that a judge disagreed to acquit him due to insufficient evidence and not due to a “type error”.

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