The Concept of Violence in the Crime of Violation And the Problem of Dissent

Ana Folhadela, Andressa Porto

• Éditeur: Ana Folhadela
• Année: 2021
• ISBN:
  9781071584958
• Sujet: Law
• Sous-sujet: Discrimination Law

The sexual crimes, as a fundamental reflection of a social vision historically determined by the intimacy relations, have been target of an intense evolution on opposite directions. In one hand, there has been a restriction about the behaviors that previously were considered criminal, with the growth of respect for the individual freedom e sexual determination by the adult person and by others, the cast of those same behaviors have grown, with the increasing of the social intolerance for those that are considered to violate this, so hardly earned, freedom.

1. INTRODUCTION

1.1. REASON FOR CHOOSING THE THEME

The densification of the conception of violence regarding crime of violation is far from being peaceful, whether it is in the doctrinal level, whether it is in the jurisprudential level.

The particular nature of sexual crimes and, specially, the crime of violation, the historical evolution of its nature and the shift of understanding concerning the judged matter drives to what, the enlightenment of its most typical elements and the consequential widening or narrowing the cast of behaviors that, in abstract, become susceptible of integrating it, take some legally relevant value in the historical moment in which they are found, making it possible to predict, in the impositions of the ordinary law and the decisions stated in the practice of the law, regardless of the  constitutional requirements that should guide, inform and shape them, about the real evolutionary status of the society regarding gender discrimination (the existence of material equality instead of merely formal equality), respect and pondering about the victims rights and dignity (would there be, in fact, the so proudly claimed Freedom?) and, through those, the practical observance of pondering the principle of protecting the weaker, as a keystone for the application of the Justice in a State of Democratic Right.

This research, after exposing several different points of view regarding the proposed problem, will try to shortly defend the reasons that might substantiate that which is considered the only reasonable demand to make to a victim of sexual acts against their will – the dissent – bearing in mind the consecration of gender equality and the obligation of respect regarding the freedom to determine and decide about sexual acts that is due to every and each person and that implies, in the given perspective (by the way based on the pre-existent doctrine and finds reflex in international instruments, namely, in the Istanbul Convention).

At last, I would like to highlight that talking about the demands regarding the crime of violation relating them to the respect for the gender equality does not imply forgetting that, currently, whether the agents or the victims of crimes of violation might be people of both genders, however it  means coming down from the theory to reality, where one can verify that the overwhelming majority of violation crimes (at least the ones one can know about), still continue to be perpetrated by men against women, based on this, in practical terms, this crime still reflects the way the State, the civil society and, particularly, the law system assume, face or tolerate the existence of the female freedom of determination and decision.

The fundamental question that this research intents to raise is to know whether to demand the use of violence as a requirement to consubstantiate performing of the crime of violation is not, by itself, a contradiction to the obligation of “non facere” (“not doing”) that, in a State that claims to have gender equality, is a duty to every person that intents to perform a sexual intercourse with another in face of the knowledge of the absence of their will of having that contact.

Finally, two last questions one would assume must necessarily emerge. Regarding the evolution of knowledge in the field of psychology and criminology: would it be that a forced sexual act (which means: against the will of the receiver) is not by itself violent, to what concerns the severe consequences that the subjection to those acts against the victims will might bring to their lives? Would it not be so that the motivation that propels the perpetrators of those behaviors to execute them just one more form of manifestation of a violent impulse of humiliating another person and exercise of power?

1.2. DELIMITATION OF THE OBJECT

This research will focus in analyzing the means of constraint (violence) demanded by the article 164º, #1 of the Criminal Code for the characterization of a certain behavior as a crime of violation. The remaining constraint methods admitted by the referred article, namely, the “severe threat”, the act of “causing unconsciousness” to another person or to “cause the impossibility to resist” will not, however, be analyzed.

Centralizing this research in the crime of violation, the violence performed by the agent will only be analyzed when perpetrated with the intention to constrain the victim “to suffer or to perform, to themselves or to somebody else, copulation, anal intercourse or oral intercourse” or “to suffer vaginal or anal inserting of body parts or object pieces”.

This research will not be analyzing the question referring to the 163º article of the same Code, in which the objective that the agent seeks is to subject the victim to perform the sexual act with them or somebody else (sexual coercion), even though the means of constraint are the same and actually “the article 164/1 describes the violation as a special case of sexual coercion – it is a qualified sexual coercion. The agent constrains the victim (through violence, severe threat or after, for that effect, having made them unconscious or causing them the impossibility to resist) whether a minor or an adult, man or woman, to suffer or perform, with themselves or others, copulating, anal or oral intercourse, or to suffer vaginal or anal introduction of body parts or object pieces”.^[1]

The discussion of the problem is equally pertinent, for the reasons explained in the previous chapter, regarding the legal type of sexual coercion crime, however it was kept out for a practical matter of space limitation and the dispersion that would be brought by the widening of the exposition of the article 163º of the Criminal Code. In addition to that, one can never approach the matter of sexual coercion apart from the discussion about what there is to be considered a “relevant sexual act”, a question that by itself is worthy of extensive and dedicated research.

This way, by the end of this short chapter dedicated to the fundaments of why is considered important to apply the approach proposed by this research, we will get into the restricted exposure of the proposed theme.

The exhibit will be organized in four chapters. Knowing that the first one will be analyzing the historical evolution of the sexual crimes in general and, specially, the crime of violation, namely regarding the evolution of the protected legal matter and the punishable behaviors.

The second one will be focused in a systematic introduction to the crime of violation, making a short analysis of its elements, with some quick reference to the doctrine.

The third one will go into the specificity of the demand of violence for the crime of violation by its own meaning and the problem of dissent, with references to doctrinal and jurisprudential points of view, options taken by the Spanish and Italian juridical ordering and in the Istanbul Convention.

Finally, the fourth and last chapter will make the grounding of the position adopted, of equivalency of the violence of acting with the victim’s dissent, having as a basis, among others, the scientific reasoning brought by the knowledge of the severe consequences that come about to the victim, from the subjection to such a criminal practice and of the motivation and characteristics of the sexual aggressor, specially a violator.

2. CHAPTER I: THE HISTORICAL EVOLUTION

2.I.1. ABOUT SEXUAL CRIMES IN GENERAL

The sexual crimes, as a fundamental reflection of a social vision historically determined by the intimacy relations, have been target of an intense evolution on opposite directions. In one hand, there has been a restriction about the behaviors that previously were considered criminal, with the growth of respect for the individual freedom e sexual determination by the adult person and by others, the cast of those same behaviors have grown, with the increasing of the social intolerance for those that are considered to violate this, so hardly earned, freedom.

In this fashion, gradually and since one could verify the will and consent between adults, the criminal law has been purged off crimes against traditional sexual morals, even if still strongly oriented by religious rules or of puritan and/or moralist background, to which we have the example of the decriminalization of homosexuality between adults, at the same time as the cast of behaviors that, in abstract, are susceptible of chara...