Is there “guilty rape”? The answer, of course, is “no”.
The issue took the respective consciences of the informed and the networks when it went public, through a report on the website The Intercept Brasil, the case of the influencer Mariana Ferrer, which I will address next. We will, as always, reach the “is the thing”. At the outset, I make it clear here: Brazil cannot take the risk of reviving the judicial ghosts of Ângela Diniz and Doca Street. He killed her on December 30, 1976. Doca’s defense managed to turn the case into a judgment on Angela’s morals. That is to say: in a snap of the fingers, the deceased was on trial, not the murderer.
Merit of Street’s lawyer, but also Brazil’s sewer. Its defender was Evandro Lins e Silva, one of the country’s great criminalists. He made history, among other things, for being one of the three signatories of the impeachment report against Collor.
Emblem of “anti-colored” progressivism, he elaborated one of the most reactionary theses that have ever passed through the courts. I was 15 at the time and I remember very well something I read then, somewhere. Lins e Silva – and it should be on the record because I quote from memory, and I guarantee that this is a good one – stated that “Angela lived more horizontally than vertically”.
The metaphor is too clear to require explanation. The offended male would then have the right to be a murderer – in that case, the situation would be especially humiliating because Angela would have betrayed Steet with a lover. There are many centuries of oppression of women in the formulation.
The campaign “Who loves does not kill” originated there. As a conceptual and political north, it is perfect. In fact, there is no divine law in this regard, since contemporary criminal law does not deal with this. One thing is certain: whoever commits a crime has to pay, whether they love it or not.
Dock was acquitted in a later annulled trial. In the second, he was condemned.
BACK TO MARIANA FERRER
The Intercept Brasil website wrote:
IN THE SECOND WEEK of September, the hashtag # justiçapormariferrer reached the trend topics of Twitter. The reason: the trial of businessman André de Camargo Aranha, accused of raping young Santa Catarina promoter Mariana Ferrer, 23, during a party in 2018, was over. He was found not guilty.
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. So the judge accepted the argument that he committed “guilty rape”, a “crime” not provided for by law. As no one can be convicted of a crime that does not exist, Aranha was acquitted.
The legal excrescence, until then unprecedented, was the icing on the cake in a process marked by the exchange of delegates and prosecutors, disappearance of images and change of the accused’s version. Images from the hearing that Intercept had access to show Mariana being humiliated by Aranha’s defense lawyer. “
Neither prosecutors nor judges use the term “wrongful rape”. The website itself informs in a note written last night:
Update, November 3, 2020, 9:54 pm: The phrase ‘guilty rape’ was used by Intercept to summarize the case and explain it to the lay public. The artifice is usual for journalism. At no time did Intercept declare that the expression was used in the process.
And, in fact, it was not. It is important to note that the accusing body, the Public Ministry of the State of Santa Catarina, requested the acquittal of the accused, businessman André de Camargo Aranha. But not because he would have committed the “guilty rape”. The reason was another. In a note, informs the MP of Santa Catarina:
“The MPSC informs that the defendant was acquitted for lack of evidence for rape of the vulnerable. The information that the prosecutor manifested himself for the acquittal of the defendant for committing a guilty rape, a criminal type that does not exist in the legal system, is not true Brazilian”.
To remember: the prosecutor of the case is Thiago Carriço de Oliveira, who replaced Alexandre Piazza. The judge is Rudson Marcos, from the 3rd Criminal Court of Florianópolis.
I read the final manifestation of the Public Ministry and the judge’s sentence. It is argued there that, in cases of rape, the victim’s testimony always carries a heavy weight, but the accusation has to be corroborated by other evidence, which, according to the consideration of both, is not given.
There is no denying that there was sexual intercourse, but the Justice accepted the argument of the defense of the businessman and the accusing body, according to which there is no evidence that Mariana was in a vulnerable condition – and, therefore, prevented from reacting. Other circumstantial elements, and I will not go into details, led the MP representative to reach such a conclusion. Some point out that important data was ignored in this trajectory. But I want to focus on another point.
I do not think, and nobody does, that the testimony of a person who says he is raped is enough to lead the alleged author to conviction. Of course, it takes more than that. The prosecutor, and the judge agreed with him, considers that such elements are not given. As a technical reasoning, Article 20 of the Penal Code is appealed. There it is written:
“Art. 20 – The error regarding the constitutive element of the legal type of crime excludes fraud, but allows punishment for a wrongful crime, if provided by law.
§ 1 – It is exempt from penalty who, for error fully justified by the circumstances, supposes a de facto situation that, if it existed, would make the action legitimate. There is no exemption from penalty when the error derives from guilt and the fact is punishable as a guilty crime. “
Here the thing is complicated to understand. No one can justify a crime by alleging ignorance of the law (Article 21 of the Penal Code). Excluding, however, deceit – which is the intention of practicing lawlessness -, there may be a punishment for a wrongful crime. And this is where the confusion sets in: why, precisely because there was no guilty rape, then André de Camargo Aranha was not asked for any punishment.
I stated in the “O É da Coisa” program that the judge had no way of condemning the defendant if the accusing body itself asked for absolution. The events are from December 2018. Since September of that year, Law 13,718 has been in force, which amended Article 225 of the Penal Code, which now reads as follows:
“In the crimes defined in Chapters I and II of this Title, proceed through unconditional public criminal action.”
Chapters I and II deal with crimes against sexual freedom, exposure of sexual intimacy and sexual crime against vulnerable people. Being, therefore, an “unconditional public action”, Article 385 of the Code of Criminal Procedure allows a judge to condemn the defendant, even if the Public Ministry has an opposite opinion. The text says:
“In public action crimes, the judge may issue a condemnatory sentence, even though the Public Ministry has opted for the acquittal, as well as recognizing aggravating factors, although none has been alleged.“
It happens, my friends, that, in this case, the Public Prosecutor’s Office ruled out the victim’s condition of “vulnerable”. And the judge says he did not see elements in the file that convinced him otherwise.
Note that, until now, I have made an exhibition that I call the case’s technique. One woman says she was raped; the accused denies the rape; the prosecuting body sees no evidence of the alleged crime, and the judge acquits him. I don’t even go into the merit, although, read the report, there are elements that seem out of place. Initially, for example, Aranha denied that he knew Mariana. And, as is evident, he knew very well.
THE GENTLES OF ANGEL DINIZ AND DOCA STREET
The National Council of Justice and the National Council of the Public Prosecution decided to investigate the case. Let them do it. It seems fair and necessary. I never proceed as a judge. I always debate the issue when it seems to me that due process of law or the rule of law may have been downgraded.
Aranha appointed Cláudio Gastão da Rosa Filho as his lawyer. It’s a medallion. As professionals in the field know, few journalists defend the category as much as I do. But, obviously, I will not be silent in the face of what is unworthy.
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