The crime of sexual harassment and its position among sexual offenses: the impact of filling a historical gap

Abstract

The article highlights the need for a re-evaluation of the dogmatic position of the crime of sexual harassment (Article 215-A of the Penal Code), analyzing the implications of Law No. 13,718/2018. Using a dogmatic-legal methodology, the study traces the evolution of sexual offenses in Brazil, emphasizing the problematic generality of the concept of “libidinous acts”, which led to disproportionate penalties. Article 215-A of the Penal Code is presented as a legislative solution to a historical gap, creating an intermediate crime for acts of medium severity, positioned between the former misdemeanor of offensive sexual harassment and rape. Sexual harassment is seen as a central modality for non-consensual libidinous acts that are not akin to carnal intercourse, with a subsidiary character. Lastly, the article critically examines the interpretation of the Superior Court of Justice, which refuses to reclassify superficial sexual acts against minors under 14 years of age, treating them as rape of a vulnerable person rather than sexual harassment. It concludes by emphasizing the importance of this legal provision in bringing greater rationality to the criminal system, while suggesting improvements for better classification and proportionality of illicit sexual conduct.