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In crimes against sexual dignity, the word of the victim carries more weight. But it is not enough to justify a conviction. For that, it needs to be corroborated by other evidence.
reproduction
Understanding that the rape charge against businessman André de Camargo Aranha is based solely on influence Mariana Ferrer and her mother, the 3rd Criminal Court of Florianópolis acquitted him out of respect at the beginning in doubt for the accused. The decision is September 9.
The Public Ministry of Santa Catarina denounced Aranha for rape of vulnerable persons (Article 217-A, paragraph 1 of the Penal Code. This is because the businessman allegedly practiced carnal conjunction with Mariana when she “could not resist the act.”
In the complaint, the MP-SC noted that, in December 2018, at the Café de La Musique de Florianópolis nightclub, Aranha, aware that Mariana, then 21 years old, could not resist, took her to a cabin. There, according to the prosecution, he had non-consensual sexual relations with influence, that she was a virgin and they broke her hymen.
However, in the final arguments, the MP-SC requested the acquittal of the businessman for unusual conduct, an argument similar to that of his defense.
Witness reports
In the sentence, Judge Rudson Marcos pointed out that it was not proven that Mariana Ferrer was drunk or under the influence of drugs to the point of being 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.
He stressed that Enya Costa Silva Sanches, the first person who had contact with Mariana after she left the box, said that the two “spoke quickly, she was fine, normal.” “She seemed to be drunk, but nothing out of the ordinary. Shortly after, she left.” Enya also said that influence he didn’t complain about anything and then he went to another disco. “In other words, at this point the victim seemed to be conscious, he communicated with the witness, left the establishment and did not mention that he had suffered an attack,” the judge analyzed.
The security guard of the Café de La Musique, Gian Pierre Ribeiro, who that night was guarding the access to the box, pointed out that Mariana and Aranha went up to the box together and, a few minutes later, the accused got out, first, moments later. Ribeiro narrated that influence He fell into normal condition and did not report any assault, according to the judge.
Rudson Marcos said that the witnesses were “categorical in stating that the victim, apparently, was conscious and in a normal state during the period that he remained inside the Café de la Musique and that, even when he arrived at the establishment 300, he also showed himself fully conscious and capable normal motor, without signs of alteration that could arouse suspicion ”.
In the Uber on the way home, Ferrer called his mother and started crying a lot, said driver Walton Souza Rabbib. In her opinion, she seemed to be under the influence of “something”, but she was not drunk as she did not smell of alcohol.
Mariana’s mother, in turn, said that her daughter came home “totally unrecognizable.” After directing him to the bathroom, the mother said she found that the influence she had been raped because her clothes were stained with blood and with a strong smell of sperm.
However, 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”).
Click here to read the decision
0004733-33.2019.8.24.0023
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