MP-SC did not request acquittal of businessman for “wrongful rape”

The Public Prosecutor’s Office of Santa Catarina said, on Tuesday (11/3), that it did not request the acquittal of businessman André de Camargo Aranha based on the argument that he practiced “guilty rape” against the influence Mariana Ferrer. In the final claims of the lawsuit, the prosecution also does not use the term. The request for Aranha to be acquitted is based on the lack of evidence on possible fraud in his conduct. Without this, there is no crime of rape of the vulnerable (Article 217-A, paragraph 1, of the Penal Code).

The 3rd Criminal Court of Florianópolis acquitted Aranha, based on the principle in doubt for the accused, because he understands that the rape charge was based only on the reports of Mariana and her mother. Judge Rudson Marcos said that it has not been proved that influence she was drunk or under the influence of drugs to the point that she was considered vulnerable and did not consent to the sexual act because she was unable to resist.

The website The Intercept Brasil stated, in a report published on Tuesday, that the prosecutor of the case, Thiago Carriço de Oliveira, requested, and the judge accepted, the acquittal of Aranha for the fact that he had committed “guilty rape”.

“According to the prosecutor responsible for the case, there was no way for the businessman to know, during the sexual act, that the young woman was not in a position to consent to the relationship, therefore there was no ‘intention’ to rape. Therefore, the judge accepted the argument that he committed ‘culpable rape’, a ‘crime’ not provided for by law. As nobody can be convicted of a crime that does not exist, Aranha was acquitted ”, said the text of Intercept.

The MP-SC affirmed, in a note, that “the information that the prosecutor manifested himself for the acquittal of the defendant for having committed a guilty rape, a criminal type that does not exist in the Brazilian legal system, is not true”.

According to the MP-SC, it was not demonstrated that there was “sexual intercourse without one of the parties having the necessary discernment of the facts or the ability to offer resistance [Mariana Ferrer], or that the other party [André Aranha] aware of this situation, assumptions for the configuration of crime ”.

“Therefore, the manifestation for the acquittal of the accused by the prosecutor was not based on the thesis of ‘culpable rape’, not least because such a criminal type does not exist in the Brazilian legal system. The defendant ended up being acquitted in the first degree court for lack of evidence of rape of the vulnerable, ”said MP-SC.

Missing expression
In the final allegations of the lawsuit, offered on August 10, the prosecutor Thiago Oliveira also does not ask for the acquittal of the businessman based on the allegation that he had committed “guilty rape”, but on the grounds that it was not proved that he acted with deception. Without it, there is no crime, he analyzed.

The MP-SC member said that Mariana Ferrer, just before the act, “had clothes on, standing up, could walk without help, had no exchange of words and, therefore, did not appear to be unable to resist the interest of the accused” .

Thus, Oliveira pointed out, there is no indication that Aranha acted with intent – that is, with awareness of the eventual vulnerability of the influence. Thus, he pointed out, it is not reasonable to assume that the entrepreneur knew or should have known that the woman did not want sexual intercourse.

In this scenario, according to the MP-SC member, the essential error must be applied (Article 20 of the Penal Code). In such a situation, the agent’s deceit is excluded, although there is a possibility of conviction for wrongful conduct. However, the rape of the vulnerable only admits the malicious modality, and not the culprit, pointed out Oliveira. Therefore, if the suspect did not act deceitfully, there is no crime.

If there was a refusal from Mariana, it was after the relationship, when she said, in a message sent to a friend, that she did not want “that boy” or when, at home, she said she had not consented to perform any type of sexual act, pondered the district Attorney.

“Thus, despite the evidence of the occurrence of carnal conjunction and libidinous acts, there is no evidence in the file that the accused was aware of or gave rise to the alleged inability of the victim to resist his attack”.

Witness reports
Judge Rudson Marcos also failed to base André Aranha’s acquittal on the thesis that he committed “culpable rape”.

In the sentence, the judge stated that, for the configuration of the rape of the vulnerable, it is necessary that the victim does not have the physical or psychological conditions to offer resistance to the sexual assault and that there is deceit in the conduct of the aggressor and awareness of the target’s vulnerability.

The judge mentioned an excerpt from the book Schematic Criminal Law, volume 3: special part, articles 213 to 359-H (Method), by Cleber Masson. In the passage, Masson says that the vulnerability is objective in nature. In this way, the person is or is not vulnerable to meet or not the peculiarities indicated by the caput (being under 14 years old) or by paragraph 1 (“someone who, due to mental illness or disability, does not have the necessary discernment to practice the act , or that, for any other reason, cannot offer resistance “) of article 217-A of the Penal Code.

However, Masson makes it clear that nothing prevents the incidence, as regards the rape of the vulnerable, of the error of the type described in article 20, caput, of the Penal Code. The provision has the following wording: “The error on the constituent element of the legal type of crime excludes fraud, but allows punishment for a guilty crime, if provided by law”. For the specialist, the type error is not to be confused with the existence or not of the victim’s vulnerability. “As the culprit modality of the rape of the vulnerable was not foreseen, the fact is atypical”, says Masson in the passage quoted by the judge.

Rudson Marcos pointed out that it was not proven that Mariana Ferrer was drunk or under the influence of drugs to the point that she was considered vulnerable and did not consent to the sexual act because she was unable to resist.

Marcos pointed out that blood alcohol and toxicology tests were negative. The judge also cited that the only witness who corroborated Mariana’s version was her mother.

“In spite of such reports, the fact is that the witnesses who were in the victim’s company stated that the victim was conscious during the period that they had contact with her, a little ‘happy’, but nothing too much, nothing that showed a state of unconsciousness or incapacity, they were not even alerted by the offended person that she had been raped “, evaluated the judge.

The reports of Mariana and her mother do not allow to conclude that Aranha committed rape, evaluated the judge. In his view, there is no other evidence to support the version that she was unable to consent to the sexual act.

“Therefore, in my opinion, the victim’s report does not have sufficient security or verisimilitude to authorize the accused’s conviction. In spite of the knowledge that the domestic jurisprudence is dominant in the sense of validating the victim’s reports, as evidence preponderant to base the conviction on crimes against sexual dignity, in which the oral test must receive greater validity, it is also verified that this testimony needs to be corroborated by other elements of evidence, which is not verified in the case records, because the version of the victim leaves doubts that could not be resolved “, analyzed Marcos.

As the evidence is conflicting, there is no way to impose criminal liability on the accused, because “it is better to acquit a hundred guilty than to convict an innocent person”, declared the judge when innocent Spider based on article 386, VII, of the Code of Criminal Procedure (” there is insufficient evidence for the conviction “).

Read the note from MP-SC:

The 23rd Prosecutor’s Office of the Capital, which acted in the case, reaffirms that it rigorously combats the practice of acts of violence or sexual abuse, so much so that it offered criminal accusations in search of the formation of evidence in favor of the truth. However, in the specific case, after the production of numerous evidence, it was not possible to prove the crime by the accused.

It is up to the Public Ministry, as guardian of constitutional rights and duties, to request the appropriate technical guidance for what is in the process, regardless of the condition of author or victim. In this case, the evidence in the file did not demonstrate sexual intercourse without one of the parties having the necessary insight into the facts or the ability to offer resistance, or even if the other party was aware of this situation, which are presuppositions for the configuration of the crime.

Therefore, the manifestation for the acquittal of the accused by the Prosecutor was not based on the thesis of “culpable rape”, not least because such a criminal type does not exist in the Brazilian legal system. The defendant ended up being acquitted in the first degree court for lack of evidence of rape of the vulnerable.

The Public Ministry also regrets the attitude of the defendant’s lawyer during the criminal hearing, which is not consistent with the conduct expected of legal professionals involved in cases that are so sensitive and difficult to the victims, and emphasizes the importance of the conduct being properly investigated. by the OAB through its competent channels.

It should also be noted that the Prosecutor has intervened in favor of the victim on other occasions throughout the procedural act, as a way to cease the conduct of the lawyer, which is not in the published excerpt of the video.

The MP-SC regrets the dissemination of misinformation, with serious legal errors, which induce society to believe that at some point it would be possible to defend the innocence of a defendant based on a non-existent criminal type.