HABEAS CORPUS 74983
RAPPORTEUR : JUSTICE CARLOS VELLOSO
DECISION DATE : JUNE 30,1997
Subject: Rape and Presumption of Violence
The defendant was condemned to eight years of imprisonment for statutory rape for having had sexual intercourse with a 12-year-old girl. The defendant argued the unconstitutionality of article 224, a of the Criminal Code, which established the presumption of violence if the victim is under fourteen, and alleged the invalidity of his sentence on the grounds that the minor had agreed to the act.
May the law establish a conclusive presumption of violence, considering that the Federal Constitution adopts the principle of subjective criminal liability?
The Full Court by unanimity rejected the alleged unconstitutionality of article 224, a of the Criminal Code on the grounds that the legislator may substitute the rape element of violence or serious threat for that of the victim’s minority, since minors are incapable of consenting.
Full text of the decision in Portuguese