Proportionality and Criminal Law: Toward a Constitutionally Adequate Interpretation of the Hypothesis of Concurrence of Rape Offenses

Abstract

Law No. 12,015/2009 restructured the legal framework of what were previously termed “Crimes against Morals,” renaming them “Crimes against Sexual Dignity” and merging the offenses of rape and indecent assault into a single criminal provision under Article 213; this legislative change has generated doctrinal and jurisprudential debate regarding the nature of the new offense, specifically whether it constitutes an alternative mixed type or a cumulative mixed type, and, if the latter, which form of concurrence of crimes applies when acts of sexual intercourse and other libidinous acts are committed within the same factual context and against the same victim, namely material concurrence, formal concurrence, or a continued offense; within this framework and from a constitutional perspective, the principle of proportionality is examined, particularly under the prohibition of insufficient criminal protection, given that the Constitution imposes a duty to protect the legal interest of sexual freedom; the study concludes that interpreting such conduct as a single offense contradicts both the theory of mixed types and the principle of proportionality, resulting in a form of unconstitutionality due to insufficient criminal protection.