A (in)constitucionalidade do artigo 225 do Código Penal em razão de sua nova redação pela lei nº. 13.718 de 2018

Abstract

The present study has as scope the analysis of the constitutionality of article 225 of the Brazilian Penal Code of 1940, against the new wording given by Law no. 13,718 of 2018, which, in practical terms, makes the rite for the prosecution of criminal actions for crimes against sexual and vulnerable freedom (Chapter I and II, Title IV - Crimes Against Sexual Dignity, of the Penal Code) be through unconditional public criminal action, that is, without any acquiescence on the part of the victim. There is an obvious clash of constitutional principles: fundamental right to privacy, explicit in the writing of art. 5, item X, of the Magna Carta, in the face of the public interest to be protected by public prosecution, a principle implicit in the legal systematization of criminal procedural law, based on art. 129, item I, of the Federal Constitution. In view of the complexity of the analysis, the historical construction of the public criminal action is initially made, and then its procedure. Afterwards, some topics are inevitably surrounded by the aborted theme, such as crimes against sexual freedom, and the principle reached in theory by the cited article. Finally, after made this fund, its face the principal question, proposing the deductions reached.