DISTINGUISHING UNCONSTITUTIONAL: THE EROSION OF THE COMPREHENSIVE PROTECTION OF CHILDREN IN MATTERS OF RAPE OF VULNERABLE INDIVIDUALS

Abstract

This chapter examines the recent evolution of the Superior Court of Justice's jurisprudence in applying the distinguishing technique to Article 217-A of the Penal Code, especially in the period between 2023 and 2025. It observes that certain decisions have begun to recognize instances where the crime of rape of a vulnerable person is not applicable based on specific factual circumstances, such as the existence of an affective bond, a small age difference between those involved, and the formation of a family unit. Using a theoretical framework anchored in precedent theory and legal argumentation, notably in the works of Frederick Schauer, Neil MacCormick, Maria Berenice Dias, and Robert Alexy, among others, the study analyzes the criteria for the constitutionality and validity of distinguishing and its compatibility with the normative structure of the penal type in question. The work also engages with the jurisprudence of the Supreme Federal Court regarding the comprehensive protection of children as provided for in Article 227 of the Federal Constitution, including decisions issued in habeas corpus proceedings that reaffirm the objective nature of age-related vulnerability for penal purposes. This study examines, among other precedents, REsp 1.480.881/PI (Repetitive Theme 918), which gave rise to STJ Precedent 593, as well as subsequent decisions reported in Bulletins 777 (2023) and 820 (2024), in addition to REsp 1.977.165/MS, in order to map possible interpretative reconfigurations in the legal treatment of age-related vulnerability. The analysis seeks to verify whether the use of distinguishing in these precedents maintains coherence with the theoretical parameters that legitimize the technique, with the constitutional system of integral protection, and with the proportionality test. Finally, it proposes, as an interpretative alternative, the preservation of typicality whenever the objective elements of the criminal type are present, with possible consideration of factual particularities within the scope of culpability and sentencing, in order to reconcile legal certainty, jurisprudential coherence, and individualization of the penal response.