delegate claims that the baby’s father is a teenager

A journalistic article that initially narrated the case of an 11-year-old child, a rape victim and seven months pregnant, who would have been kept by the Santa Catarina justice in a shelter far from her family to prevent her from having an abortion, led to the publication of a note from the Federal Public Ministry (MPF). In it, the organ recommended that the fetus be removed – regardless of the gestational period.

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The report, published by a pro-abortion vehicle this Monday (20), generated great repercussion, commotion and caused different political actors and civil society entities to manifest themselves asking for an abortion to be carried out urgently. Faced with the pressure, the hospital, which initially refused to perform the procedure, claiming that the institution’s rules only allow abortion up to the 22nd week, ended up giving in and the “interruption of the pregnancy” was performed this Thursday (23). ).

The report, however, omitted an important element of the narrative, which was informed by delegate Alison da Costa Rocha, of the Civil Police of Santa Catarina (PC-SC), responsible for the investigation of the case: the child would have become pregnant after having sex with a 13 year old teenager. THE People’s Gazette also found that the young man is the son of her stepfather and lives in the same house where the girl lived. The request for the institutional reception of the child, determined by judge Joana Ribeiro Zimmer, came from the Public Ministry of Santa Catarina (MP-SC) precisely to keep the girl away from the risk of further abuse. Despite this, in an excerpt of the report, there is mention of the shelter as a “prison”.

The concealment of information about the profile of the possible perpetrator of the sexual act is strange, since the article presents a variety of details of the case, with the right to the leak of confidential data of the process, which took place in judicial secrecy. In addition to not mentioning the probable participation of a minor, in a video edited by the same newspaper, in which images of the audience are shown, the vehicle refers to the author of the sexual act as a male rapist: “The child is also questioned if the man who raped her would agree to give the baby up for adoption”, he informs, before showing the scene.

Delegate says minors can answer for infraction

In an interview with People’s GazetteDeputy Alison da Costa Rocha stated that the sexual act between the girl and the teenager who got her pregnant was not exceptional, and the affective relationship between the two was maintained prior to conception.

According to article 217-A of the Penal Code, sexual practice with children under 14 constitutes a crime of rape of a vulnerable person, with a forecast of up to 15 years in prison. However, minors are not criminally liable according to the Federal Constitution and the Statute of Children and Adolescents (ECA). Under Brazilian law, offenses committed by persons under the age of 18 result in an infraction, which is not equivalent to a crime.

At the moment, according to the delegate, the police work with two possible conclusions for the case. The first is for both minors to respond for an infraction analogous to the rape of a vulnerable person, reciprocally, if it is concluded that the two committed the act consentingly.

During the investigations, according to Rocha, it was identified that the girl consented and that at no time was there violence or unilateral induction to the practice of sexual intercourse. Even so, according to precedent 593 of the Superior Court of Justice (STJ), rape of the vulnerable is considered an absolute presumption, regardless of the romantic involvement or consent on the part of the victim.

The second hypothesis of outcome is that neither of them is responsible for the infraction, applying the so-called “Romeo and Juliet exception”, which aims to decriminalize the conduct of adolescents who have reciprocal sexual relations. “In this case, the victim’s involvement, the ‘dating’, that is, the concrete context, is taken into account. And there would be no penalty for the infraction, but other measures, such as psychological and psychosocial follow-up”, explains the delegate.

This week, the Public Ministry of Santa Catarina asked for new steps in relation to the case, and after the completion of them, there will be the definitive conclusion of the police investigation. This Thursday (23), genetic material was collected from the teenager to confirm the conclusion of the investigation.

Legal occurrence of rape through the new facts

In Brazil, abortion is considered a crime and is provided for in the Penal Code in the title that deals with crimes against life. There are, however, two cases in which there is no punishment for those who perform the abortion: when the procedure is done to save the life of the pregnant woman or in case of pregnancy resulting from rape, provided that the victim wishes to do so – or, being a minor, age, with the authorization of the legal guardian. There is yet another hypothesis, which derives from a 2012 judgment by the Federal Supreme Court (STF), in which it was established that there will be no punishment in the case of abortion in an anencephalic fetus.

According to the delegate, regardless of whether the Justice understands that the girl committed the infraction, this would not prevent the legal exception for abortion. Deputy Patrícia Zimmermann D’Ávila, coordinator of the PC-SC Child and Adolescent Protection Police Station, also understands that there was rape regardless of the context of the case.

“Any sexual relationship with a child or adolescent who is under 14 years of age, even if the person who practiced the sexual act says he wants or can practice it, the law considers it a crime of rape because the legislator understands that the minor or under 14 years old does not have the autonomy to decide and say ‘I do or do not practice the sexual act'”, said the delegate to the G1 this Friday.

On the other hand, Dário Júnior, PhD in Procedural Law, points out that the alleged rape committed by the teenager could not legally be considered as such, invalidating the legal reservation for performing the abortion. “As a 13-year-old teenager, he would have committed an infraction equivalent to the rape of a vulnerable person, but he is also considered vulnerable. If legally he does not commit a crime, in this case it would be difficult to certify that the pregnancy was the result of rape, because it was consensual and the author was vulnerable”, he explains.

Possible liability of the parents of minors

According to the evaluation of jurists interviewed by the report, if it is proven that the child’s mother and the adolescent’s father had prior knowledge that the minors had sexual relations, it would be the parents who could answer for the crime of rape of a vulnerable person, which appears in the list of the so-called “heinous crimes”, that is, they are non-bailable and insusceptible to grace, bail, pardon or amnesty.

“The Constitution considers that the principals, the executors and those who, being able to avoid the practice of the crime, omit any conduct that characterizes heinous crime must answer for the heinous crime”, explains Geovane Marques, professor of Criminal Law and Criminal Procedure. “If the Court proves that the parents were aware of the sexual act between them – and did nothing -, it is possible to argue the institute of improper omission”.

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As Dário Júnior explains, since father and mother are guarantors of the well-being of children and adolescents, in the face of possible omissive conduct, in the case in question, the parents would be responsible for the rape by willful omission.

Marques points out that, once parental responsibility is proven, the mother’s authorization, as the girl’s legal guardian, for the abortion to take place would be impaired. “If the legal guardians of the minor, who must authorize the abortion procedure, are held responsible for the situation – even if as an improper omission – this authorization eventually given by them would be considered vitiated. Because if up front it is found that they are responsible or related to the crime, the abortion has already been carried out, and the fact will become irreversible”.

Website that published the case has already been convicted of manipulating data from another confidential process

This isn’t the first time that the news site that originally published the case has omitted information to address political issues of interest. In 2020, the newspaper published a report in which it was falsely quoted that the boy accused of rape by influencer Mariana Ferrer would have been acquitted because the Justice considered that he had committed a “wrongful rape” – a criminal type that does not exist in Brazilian law. The narrative created by the vehicle, which involved the manipulation of the video of a hearing of the case, held in July 2020, in an attempt to show that there were injustices during the act, also generated strong repercussion and commotion.

Subsequently, a court decision ordered the website to rectify the information and clarify that there was no mention of the term in the sentence, in the closing arguments or at any other point in the process. The vehicle was also forced by the Justice to reveal that it manipulated the video of the hearing.

This week’s article, which has been used by pro-abortionists to press for flexibility in the procedure in the country, was published less than two weeks after the Ministry of Health published a document aimed at health professionals, health services and public managers. with technical norms for assistance to women in relation to abortion. The document was harshly criticized not only by the newspaper, but also by another feminist news site, which appears as a co-author of the report.

The feminist website informs that its purpose is to “articulate feminist engagement in the construction of journalistic narratives”. The child’s mother’s lawyer is a columnist for the site. On the portal, she defines herself as a “feminist, communist and human rights activist”. In one of her articles published on the site, she narrates that at the age of 22 she had an abortion. When mentioning her boyfriend, she justifies the episode: “We were young and wanted to enjoy life freely”.

THE People’s Gazette tried to contact the lawyer, who preferred not to respond to the report’s request for an interview.

About Abhishek Pratap

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