What is Rape Under Brazilian Law?

By Xiu Ying

RIO DE JANEIRO, BRAZIL – Rape is provided for in Article 213 of the Brazilian Penal Code and is a criminal offense characterized by the act of forcing a person to have sex or another lewd act, by means of violence or severe threat.

This was changed in 2009 when indecent assault and rape became a single criminal offense, explains Mônica Sapucaia Machado, who has a doctorate in political and economic law and is a specialist in gender compliance. “This was an important change because there is no longer a need for vaginal penetration to configure rape.”

Another significant change to the legislation was the alteration of the title under which the crime is found in the Penal Code. In the original 1940 wording of the code, rape was classified within “crimes against morals”. However, today it is considered a crime against sexual dignity. “By doing so, we are protecting the sexual freedom of women,” says Mônica Sapucaia Machado.

To be configured as rape, it is necessary that the act be considered lewd. Thus, it is difficult to say which acts configure rape, because they may have two possible connotations, explains Sapucaia Machado. “For example, a man who violently grips a woman’s breasts in a fight. That’s not a lewd act. In that case, it would only be characterized as physical assault. The erotic intention of the act will determine what is lewd and what is not.”

The Penal Code establishes penalties ranging from six to ten years imprisonment; eight to twelve years if the conduct results in serious bodily injury or if the victim is under eighteen or over fourteen years of age; and twelve to thirty if conduct results in death.

Statutory rape is provided for in article 217A of the Penal Code: “To engage in intercourse or other lewd act with a child under fourteen years of age”. In this case, the factor of violence or severe threat is not required, as it is presupposed that the minor has no judgment, says João Paulo Martinelli, a criminalist and graduate professor at the School of Law in Brazil (EDB).

In addition to sexual or lewd act with children under the age of fourteen, the offense includes the act with “someone who, due to illness or mental disability, does not possess the required judgment to practice the act, or who, for any other reason, cannot offer resistance,” explains Martinelli.

The penalties range from eight to fifteen years imprisonment; or from ten to twenty years of imprisonment if the conduct results in serious bodily injury; and from twelve to thirty years of prison, if the conduct results in death.

Rape is a non-bailable offense and a heinous crime. In other words, defendants have greater difficulty in remaining free while defending themselves, and, if convicted, obtaining the possibility of parole.

Sexual harassment differs from rape, through the practice of a lewd act without the engagement of the victim, says Martinelli.

The act of touching someone’s intimate areas without their consent would be classified as sexual harassment, explains the criminalist. “It’s like when someone touches a woman in public transportation. Or like the case of men ejaculating on women.”