Aborto resultado de estupro ou ato infracional análogo ao estupro de vulnerável: um estudo comparativo de sobreposição de juízos de valores dos tribunais de segunda instância

Abstract

The judgments of the State Courts of Justice were analyzed about the request for authorization of the human abortion in children or teenagers under 14 years old, in face of the set of the crime of rape of vulnerable or analogous infraction, with the objective of comparing the decisions towards this legal exception, as the possible divergences in the face of the permissive requirements absolute vulnerability, irrelevance of consent and non-enforceability of judicial authorization. The research was a literature review, based on the observance of legal dogma and the bibliographic deductive method. The jurisprudential analyzes of the Courts of Justice presented positions similar to those of the STJ, regarding the application of the absolute vulnerability parameter and the irrelevance of consent. However, it was insufficient to provide the resources, due to the duration of the pregnancy in three of the five judgments obtained. Differences were found both in granting, regardless of the gestational period, and in the other grounds for rejecting the requests, two due to the absence of the requirements contained in the Procedure for Justification and Authorization of Interruption of Pregnancy in two decisions and one due to loss of object by absolute sentence of the infraction analogous to the rape of vulnerable. The finesse of the theme goes through the weighting of the provisions between the correspondence with the expectations of the legislator and the risk to the life and health of the pregnant woman inherent to the gestational period, which were essential for the decisions, considering the typicality of the act, the gestational period and the age of the infant, which made it possible to know and reflect on the right to implement ethical abortion in this age group.