Stealthing como violência de gênero: os limites do consentimento e a possibilidade jurídica do aborto por analogia in bonam partem

Abstract

Stealthing consists on the remotion of the condom during the sexual act, without the partner's prior consent. The main key to characterization or not of the crime is the existence of consent or the absence of it. After all, the victim only agrees to sexual intercourse if there is protection. However, the conduct is not expressly provided for in the Brazilian Penal Code, even though the practice is considered a crime of sexual violence against women. In view of the absence of an incriminating criminal type, as well as a possible unwanted pregnancy as a consequence, the present study about the subject is necessary to provide an analysis of the ideal treatment to be applied in the concrete case. Thus, the legal possibility of abortion is analyzed through the application of analogy, since the legal hypotheses are limited. An exploratory research of an applied nature was carried out using the deductive method. To obtain the necessary data, bibliographical and documentary research was used, in addition to case studies. In view of this, it was resisted that there are doctrinal divergences regarding the possibility of using an analogy in bonam partem to interpret humanitarian abortion. In the end, it was possible to conclude that the legislature urgently needs to identify the need for immediate penal reform. In addition, recognizing the practice of stealthing as sexual violence, consequently, implies permission for the victim to undergo the forensic examination to collect genetic material from the aggressor, receive post-exposure prophylactic care and, in severe cases, may perform legal abortion.