Violência contra a mulher: legítima defesa antecipada como causa de excludente de ilicitude

Abstract

The present course work has as its object of study the thesis of anticipated self-defense, a variant of the Institute of classic self-defense, whose exceptionality occurs mainly in terms of the moment of reaction to aggression. In view of the State's failure to act, victims of domestic violence may find themselves obliged, on their own, to act in order to avoid a greater harm, which will not always be possible (given the specificities that make it difficult to defend against this type of violence) in the exact moment when the aggression is taking place. In this case, one of the requirements present in self-defense typified by article 25 of the penal code is absent: the unjust aggression is current or imminent. In this way, a gap between the text of the law and real life is demonstrated, since the woman, even acting in self-defense, in the only way she could, will be subjected to a criminal process, not being supported by the exclusion of illegality of the law. The novel theory in question arises in order to solve the problem, shifting the temporality of the defensive response of aggression to a previous moment, when it proves to be future and certain. Thus, the specific purpose of this work is to analyze the appropriateness or not of the applicability of the thesis of anticipated self-defense, mainly in view of the unenforceability of waiting for the moment of aggression to, only then, react, since it is a situation in which the The victim, in addition to being helpless by the State, still has to face the disproportionality of violence. It is an explanatory research, using a bibliographic review, with a deductive and bibliographic approach.