The matter of consent: particularities in light of the article 171.º, no. 2 of the Penal Code | 2017

Author(s) Carina Marques de Oliveira
Advisor(s) Mário João Ferreira Monte
Year 2017

Synopsis The following dissertation has as its object of study the matter of consent in the sexual abuse of children being this crime in laid down in the 171st article of the Penal Code. The sexual content of the act that takes place can assume diverse nature depending on the different numbers and lines in which the penal article is divided. However, is on the practice of the sexual acts of constant emphasis in no. 2, namely if the sexual act of relevance consists in copula, anal intercourse, oral intercourse, or vaginal or anal introduction of body parts or objects, where are laid down the most serious sexually abusive conducts of this crime and where consequently is stipulated the highest prison sentence, that goes from 3 up to 10 years. Hence, the analysis of our study lays solely on no 2 of this criminal type. In this sexual crime we face a sexual relationship between a child with less than 14 years of age and someone significantly older then her or already adult, there is a minimum difference, tendentiously fixed, on 5 years. Something characterized as a sexual relationship does not relate only with the involved persons’ age, but also with the child’s consent on the practice of such sexual acts. It is upon this child’s agreement, which encases always the nature of consent, that lay the questions we look to answer. Would this agreement shown by the child for the practice of the aforementioned sexual acts of relevance, should it always be a consent or could it just be an agreement? Should this consent, given by a child aged less than 14, be always irrelevant or should this question be analysed in each specific case? Both the law and the jurisprudence are headed in the same direction, however, regarding those questions, to this day a doctrinal discussion continues to be prepetual. The purpose of this study is to understand the reasons that led the legislator to classify this agreement always as a consent and more importantly, the reasons that led this consent to be considered vicious, irrelevant and unable to exclude the illegality of the practiced sexual demeanour. For such, in the first chapter we start by doing a juridical contextualisation of the penal article that we will analyse, concerning its particularities, limitations and implications. In the second chapter we approach the matter of consent, namely the doctrinal discussion that continues to be waged on this subject, the application of this doctrinal discussion to the sex crime analysed in our study, and the reasons whereby we defend that the child’s agreement must always be an irrelevant consent. Lastly, the third chapter addresses a jurisprudential analysis of this sex crime and for such we sustain ourselves on the Supreme Court of Justice’s judgement of the 12th of October 2011. We take as a basis this judgement, because the jurisprudential decision contained in it demonstrates exactly what should not be overlooked on the crime of children’s sexual abuse and thus should have not been overlooked in the jurisprudential decision of this supreme court.

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