MP-SC did not request the acquittal of the businessman for “unjust violation”

The Public Ministry of Santa Catarina said, on Tuesday (3/11), that it did not request the acquittal of businessman André de Camargo Aranha based on the argument that he practiced “conviction violation” against him. influence Mariana Ferrer. In the final claims of the lawsuit, the prosecution also does not use the term. Aranha’s request for acquittal is based on the lack of evidence of possible fraud in his conduct. Without this, there is no crime of rape of vulnerable persons (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 solely on the reports of Mariana and her mother. Judge Rudson Marcos said it has not been proven 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 could not resist.

The place The Intercept Brazil declared, in a report published on Tuesday, that the prosecutor in the case, Thiago Carriço de Oliveira, requested, and the judge accepted, the acquittal of Aranha for the fact of having committed a “conviction violation.”

“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, so there was no ‘intention’ to rape. Therefore, 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 ”, says the text of Intercept.

The MP-SC affirmed, in a note, that “the information that the prosecutor gave for the acquittal of the accused for having committed a conviction violation, a type of crime 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 the crime ”.

“Therefore, the statement of the acquittal of the accused by the prosecutor was not based on the thesis of the ‘guilty violation’, especially since such a crime 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 vulnerable people, ”said MP-SC.

Lost expression

In the final allegations of the process, offered on August 10, the prosecutor Thiago Oliveira does not request the acquittal of the businessman for the allegation of having committed a “conviction violation”, but for not having proven that he acted. with deception. Without him, there is no crime, he analyzed.

The MP-SC member said that Mariana Ferrer, just before the act, “dressed, stood up, could walk without help, did not exchange words and, therefore, did not seem incapable of resisting the interest of the accused.” .

Therefore, Oliveira pointed out, there is no indication that Aranha acted with intention, that is, with awareness of the potential vulnerability of the influence. Therefore, he noted, it is not reasonable to assume that the employer knew or should have known that the woman did not want to have sex.

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

If Mariana refused, 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 that she had not consented to perform any type of sexual act, she pondered the. district attorney.

Thus, despite the evidence of the occurrence of carnal conjunction and libidinous acts, there is no record in the file that the accused had knowledge or had given rise to the alleged inability of the victim to resist his attack.

Witness reports

Nor did Judge Rudson Marcos base the acquittal of André Aranha on the thesis that he committed a “guilty violation.”

In the sentence, the judge pointed out that, for the configuration of the violation 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 deception in the behavior of the aggressor and conscience 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 vulnerability is objective in nature. In this way, the person is vulnerable or not, whether or not they comply with the peculiarities indicated by the caput (being under 14 years of age) or by section 1 (“who, due to mental illness or disability, does not have the necessary discernment to practice the act, or that, for any other reason, cannot oppose resistance ”) of article 217-A of the Penal Code.

However, Masson clarifies that nothing prevents the incidence, with regard to the violation of vulnerable persons, of the error of the type described in article 20, caput, of the Penal Code. The provision is worded as follows: “The error with respect to the constitutive element of the legal type of crime excludes fraud, but allows punishment for an illegal crime, if the law so provides.” For the specialist, the type error should not be confused with the existence or not of the vulnerability of the victim. “As the guilty modality of the violation 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 has not been 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 could not resist.

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

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

The reports of Mariana and her mother do not allow to conclude that Aranha committed rape, the judge evaluated. In her opinion, 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 plausibility to authorize the conviction of the accused. Despite the knowledge that domestic jurisprudence dominates 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 evidence must receive greater validity, it is also verified that this testimony needs to be corroborated by other evidentiary elements, which is not verified in the file, since the version of the victim leaves doubts that could not be resolved ”, analyzed Marcos.

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

Read the MP-SC note:

The 23rd Prosecutor’s Office of the Capital, which acted in the case, reaffirms that it strictly fights the practice of acts of violence or sexual abuse, so much so that it offered criminal complaints 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 the responsibility of the Public Ministry, as guardian of constitutional rights and duties, to request a technically adequate orientation of what is in process, regardless of the condition of the author or victim. In this case, the evidence in the record did not demonstrate a sexual relationship without one of the parties having the necessary knowledge of 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 a crime.

Therefore, the statement of the acquittal of the accused by the Prosecutor was not based on the thesis of “culpable violation”, especially since such a crime 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 position of the defendant’s lawyer during the criminal hearing, which does not correspond to the conduct expected of legal professionals involved in cases so delicate and difficult for the victims, and highlights the importance of the conduct is properly investigated. by the OAB through its competent channels.

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

The MP-SC regrets the dissemination of misinformation, with serious legal errors, which lead 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.