Stanley Martins Frasão*

Fernanda Campolina Veloso**

If the Constitutional Amendment Proposal on pedophilia, presented by congressman Urzeni Rocha (PSDB-RR) is passed, child abuse will be a non-bailable offence without expiration. Rochas’s objective is to grant the victim the opportunity of pressing charges "when he or she is in the properly prepared to do it." This would contribute to increase the efficacy in combating this type of crime, which expires in the majority of cases as a result of the delay in pressing charges because the victim is afraid of the offender. Urzeni Rocha reminds us that, in general, the victims of child molestation take long in accusing their aggressor because it takes them a long time to understand the abuse or because they have a relationship of economic or emotional dependence with the aggressor.

"Many times, the act of child abuse is expired once it is revealed, making it difficult to punish the aggressor and compensating the victim," argues the congressman. The proposal, if approved, will strengthen the dispositions of the International Convention on the Rights of the Child, ratified by Brazil. The Convention is a treaty which seeks to protect children and teenagers everywhere in the world, approved by Resolution 44/25 of the General Assembly of the United Nations, in November 20, 1989. In the American continent, the treaty of 1969 – the Pact of San José – establishes in its article 19 that that makes the victims emotionally or economically dependent on the

"Muitas vezes, o ato de pedofilia já se está prescrito quando é revelado, dificultando a punição do agressor e a reparação da vítima", argumenta o deputado. A proposta, se aprovada, fortalecerá as disposições da Convenção Internacional sobre os Direitos da Criança, que foi ratificada pelo Brasil. A Convenção é um tratado que visa à proteção de crianças e adolescentes de todo o mundo, aprovada pela Resolução 44/25 da Assembléia Geral das Nações Unidas, em 20 de novembro de 1989. No Continente Americano, o tratado celebrado em 1969 - o Pacto de São José da Costa Rica - estabelece, em seu artigo 19, que “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."

Pedophilia is classed by the World Health Organization as a mental and personality disorder of the adult, and also a sexual perversion. Sexual acts between adults and children below the age of consent (whether resulting in coitus or not) is characterized in the legislation of many countries. Correlated practices, such as divulging child pornography or making an apology for it, are also classed as crimes in many countries. Research has concluded that the behavior of the pedophile is more common amongst men.

Sexual relationship between adults and teenagers is regulated by laws in each country regarding the age of consent. Some countries allow sexual relationship from a minimum age (13 in Spain, 14 in Brazil, Portugal, Italy, Germany, and Austria, 15 in France and Denmark, 16 in Norway). Brazilian Law does not characterize the crim "pedophilia." But as a contact between children and adults, pedophilia is classed as a rape crime (article 213 of the Penal Code). The new 12,015 law of 2009 that deals with heinous crimes and the corruption of minors, inserted in the Penal Code the article 217-A, which classifies the "rape of a vulnerable person." According to the article, having carnal union or practicing any libidinous act with a child under the age of 14 results in 8 to 15 years of imprisonment.

The new law adds that whosoever practices carnal union or libidinous act with a person who is incapable to discern a sexual act or offer resistance due to infirmity, mental deficiency, or any other reason. Before the new law, criminal procedures would always depend on accusation. The rule, therefore, was penal action of private initiative. Now, with the wording of article 225 of the Penal Code, in the crimes defined in Chapters I and II of the Title VI (crimes against sexual freedom and sexual crimes against a vulnerable person, articles 213 and 218-B, respectively) the penal action is always public, conditioned to representation, except when the victim is a minor (under 18) or a vulnerable person, in which case the penal action will be public and unconditioned.

The criminal lawyer Daniela Villani Bonaccorsi explains that pedophilia, though it is colloquially treated in the sense of corruption of minors, it is not classed as a crime, being analyzed by criminology as a disease related to people who derive sexual pleasure from children. Nowadays the term has been used in relation to the article 218 of the Penal Code, corruption of minors. About the theme, the new 12,015 Law of 2009 included in the Penal Code the article 218-A: "Satisfaction of lust in the presence of a child or teenager" in which practicing carnal union or inducing participation in any libidinous act in the presence of a child under 14 in order to satisfy their own lust or the lust of another results in a 2 to 4 year sentence of imprisonment.

Currently, in the terms of the Brazilian Constitution of 1988, only the crime of racism is qualified as non-bailable and does not expire. Urzeni Rocha’s intention is to define a more rigorous definition of pedophilia, as it was done in the case of racism. In a crime that does not expire, culpability will be applicable as long as the offender is capable of responding for his or her actions. In a non-bailable crime the defendant does not have the right to be released on bail, and has to remain in prison to await trial.

The Bill 5120/09, presented by Captain Assunção (PSB-ES), proposes an increase in the sentences for child abuse crimes contained in the Child and Adolescent Statute (Law 8,069/90). Assunção believes that harsher punishment would work as a preventative and inhibiting measure against pedophilia. He argues that this type of crime affects the victims for the rest of their lives.

The project also sets a 5 to 8 year sentence and a fine to people who photograph or film children and teenagers performing sex acts. The current law establishes 4 to 8 years for this crime and the increase in one third of the sentence if the pedophile commits the crime in the exercise of a public job or if he or she takes advantage of domestic or family relations in order to attack victims. The Bill proposes, in these cases, the increase in two thirds of the sentence.

According to the proposal, the sentence will also be more severe in cases in which the crimes are carried out against a child under 14 who has mental disability or who cannot offer any resistance. The Bill also increases the sentence for those who simulate the participation of a child or teenager in sex scenes, establishing a 4 year sentence and a fine for such crimes. This is currently set at 3 years confinement and a fine.

Adults who lure children and teenagers into practicing a libidinous acts with them will be punished with 3 to 8 years of confinement and a fine. The current sentence is 1 to 3 years and a fine. The Bill also includes the crime of stimulating a child to perform sexual acts with another person. The sentence may also changed to that of prostituting a minor. The current sentence is 4 to 10 years of confinement and a fine, which might change to 6 to 12 years and a fine.

Finally, the second Bill, a sexually explicit scene is not only that which has sexual outcomes, but also instigating purposes. The Bill will be analyzed by the commission of Social and Family Security; the Commission of Justice and Citizenship, before it can be voted by Congress.

Translator: Pedro Malard Monteiro.

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*Stanley Martins Frasãois attorney at "Homero Costa Advogados"

*Fernanda Campolina Veloso is a paralegal at "Homero Costa Advogados"