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Is there a “guilty violation”? The answer, of course, is no. “
The issue took the respective consciences of those informed and the networks when the case of the influencer Mariana Ferrer was made public, through a report on the website The Intercept Brasil, which I will address below. We will arrive, as always, at “it is the thing”. From the outset, I make it clear here: Brazil cannot run 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 morale. That is to say: in a snap of the fingers, the deceased was on trial, not the murderer.
Merit of the lawyer from Street, but also sewerage from Brazil. His defender was Evandro Lins e Silva, one of the great criminals of the country. He entered history, among other things, for being one of the three signatories of the impeachment complaint against Collor.
Emblem of “anti-color” progressivism, he elaborated one of the most reactionary theses that have passed through the courts. I was 15 years old 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 you that this is good – stated that “Angela lived more horizontally than vertically.”
The metaphor is too clear to require explanation. The offended man 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.
There the campaign “Who loves does not kill” originated. As a conceptual and political north, it is perfect. In fact, there is no divine law on this, since contemporary criminal law does not address this. One thing is for sure: whoever commits a crime has to pay, like it or not.
Dock was acquitted in a later mistrial. In the second, he was convicted.
BACK TO MARIANA FERRER
The Intercept Brasil website wrote:
IN THE SECOND WEEK of September, the hashtag # justiçapormariferrer hit the trending topics of Twitter. The reason: the trial of businessman André de Camargo Aranha, accused of raping the 23-year-old promoter Mariana Ferrer, from Santa Catarina, ended during a party in 2018. He was declared innocent.
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 in no condition to consent to the relationship, therefore, there was no “intention” to rape. So the judge accepted the argument that he committed a “guilty violation”, a “crime” not provided for by law. Since no one can be convicted of a crime that does not exist, Aranha was acquitted.
The legal excrescence, hitherto unpublished, was the icing on the cake in a process marked by the exchange of delegates and prosecutors, disappearance of images and change of version of the accused. Images from the hearing that Intercept had access to show Mariana being humiliated by Aranha’s defense attorney ”.
LET’S SEE
Neither prosecutors nor judges use the term “wrongful rape”. The website itself reports in a note written last night:
Update, Nov 3, 2020, 9:54 pm: Intercept used the phrase ‘guilty violation’ to summarize the case and explain it to the non-specialist public. Artifice is common in journalism. At no point did Intercept state that the expression was used in the process.
And, in fact, it wasn’t. It is important to note that the prosecuting 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 had committed the “guilty rape.” The reason was another. In note, the MP of Santa Catarina reports:
The MPSC reports that the defendant was acquitted for lack of evidence for rape of vulnerable people. The information that the prosecutor gave for the acquittal of the accused for committing a crime of rape, a criminal type that does not exist in the legal system, is not true. Brazilian”.
To remember: the prosecutor in the case is Thiago Carriço de Oliveira, who replaced Alexandre Piazza. The judge is Rudson Marcos, of the 3rd Criminal Court of Florianópolis.
I read the final statement of the Public Ministry and the judge’s sentence. There it is argued that, in rape cases, the victim’s testimony always carries great weight, but the accusation must be corroborated by other evidence, which, according to both, is not given.
It cannot be denied that there was a sexual relationship, 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 representative of the MP to reach such a conclusion. Some point out that important data was ignored on this trajectory. But I want to focus on another point.
I do not believe, and no one does, that the testimony of a person who claims to have been raped is sufficient to lead the alleged perpetrator 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 technical reasoning, article 20 of the Penal Code is appealed. There it is written:
“Art. 20 – The error on the constitutive element of the legal type of crime excludes fraud, but allows the sanction of the illegal crime, if the law so provides.
Paragraph 1 – Anyone who, by mistake fully justified by the circumstances, supposes a de facto situation that, if it exists, would legitimize the action is exempt from penalty. There is no exemption from penalty when the error derives from fault and the act is punishable as a guilty offense “.
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). However, excluding deception, which is the intention to practice illegality, there may be a punishment for an unlawful crime. And this is where the confusion begins: why, precisely because there was no guilty rape, then André de Camargo Aranha was not asked for any punishment.
CLARIFICATION NOTE
I affirmed in the program “O É da Coisa” that the judge had no way of convicting the accused if the prosecuting body itself requested acquittal. The events are from December 2018. Since September of that year, Law 13,718 has been in force, which modified article 225 of the Penal Code, which now has the following wording:
“In the crimes classified 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 crimes against vulnerable people. Being, therefore, an “unconditional public action”, article 385 of the Criminal Procedure Code allows a judge to convict the accused, even if the Public Ministry has a contrary opinion. The text says:
“In crimes of public action, the judge can hand down a conviction, although the Public Ministry has opted for acquittal, in addition to recognizing the aggravating circumstances, although none have been alleged.“
It happens, my dear ones, that, in this case, the Public Ministry ruled out the victim’s “vulnerable” condition. And the judge says he did not see elements in the record that convinced him otherwise.
Note that, up to now, I have made a presentation that I call a case technique. A woman says she was raped; the accused denies the violation; the prosecutor sees no evidence of the alleged crime and the judge acquits him. I don’t even get on the credit, although, read the report, there are elements that seem out of place. Initially, for example, Aranha denied knowing Mariana. And, of course, he knew it very well.
LOS SOVES DE ANGEL DINIZ AND DOCA STREET
The National Council of Justice and the National Council of the Public Ministry 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 or the rule of law may have been downgraded.
Aranha appointed Cláudio Gastão da Rosa Filho as his lawyer. It is a locket. As professionals in the field know, few journalists defend the category as much as I do. But obviously I will not remain silent in the face of the unworthy.
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