The New Criminal Action in Crimes Against Sexual Dignity: An Analysis of Law No. 12.015/2009

Abstract

The article examines the changes introduced by Law No. 12.015/2009 to the rules governing criminal prosecution in crimes against sexual dignity, with emphasis on legislative reform, interpretive controversies, and transitional rules. First, the author summarizes the main effects of the reform, including the unification of rape and violent indecent assault into a single offense, the creation of the offense of rape of a vulnerable person, and the reformulation of the former concept of presumed violence. The study then reconstructs the previous legal framework applicable to crimes against customary morality, which was marked by a general rule of private prosecution and several statutory and case-law exceptions, including the impact of STF Precedent 608. It next analyzes the new wording of article 225 of the Brazilian Penal Code, which established, as a general rule, public prosecution conditioned upon the victim’s representation, except where the victim is under eighteen years of age or otherwise vulnerable, in which cases prosecution is unconditional. The article also addresses specific problems involving rape accompanied by serious bodily injury, death, threats, domestic violence, and vulnerability, arguing for interpretive solutions grounded in proportionality and effective criminal protection. Finally, it maintains that changes in the type of criminal action have a hybrid nature, with both substantive and procedural consequences, so that transitional rules must follow the principle of applying the more lenient rule to the defendant.