"Because, though you yourself may have meant nothing but what was innocent, your words may have suggested something less innocent to the evil minds of your hearers; and then the law steps in, and calls it dolus eventualis, and everybody says how dreadful, and off you go to prison and are punished as you deserve to be." -- Elizabeth and her German Garden, by Von ARNIM
"Under cover of the MEA CULPA, striking her breast so vigorously that everybody, even the lady with the red cushion, turned round toward her." -- The Three Musketeers, by Alexandre DUMAS
Three Topics: 1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code; 2. The Consent of the Offended; and, 3. Classification of the Crimes Against Life in the Brazilian Penal Code.
1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code
The Brazilian penal legislator protects the human being since its conception. Hence, the penal tutelage beholds events that precede the birth by the legal typification of the crime of abortion.
Talking about crimes against the person, a fast interpretation leads to the conclusion that it concerns to the physical person, with the exclusion of the juridical person. However, in certain cases, the juridical person can be the passive subject. Thus, nothing impedes that a juridical being be the offender in the crime of defamation. A juridical person, such as a commercial enterprise or an association, can be the passive subject of the crime described in the article 139 of the Brazilian Penal Code, where there's the description of the crime of defamation, legally defined as "to impute to somebody an offensive fact to their reputation". The same happens about the crime of violation of dwelling, described in the article 150, caput, of the Brazilian Penal Code, which says "to enter or to stay, clandestine or astutely, or against the expressive or tacit will of who has the rights, in other's house or in its dependencies". Not only the physical person can be the passive subject of this delict. A commercial enterprise, in connexion with determined compartments of its headquarters, can suffer the illicit violation. Another example is found in the delict of violation of correspondence, in the article 152, according to which disposes that "abusing of the condition of an associate or an employee of a commercial or industrial establishment to, in total or in part, deviate, steal, subtract or suppress correspondence, or to reveal its content to a stranger".
2. The Consent of the Offended
The Brazilian Penal Code of 1890, in its article 26, c, anticipated the victim's consent did not excluded the criminal intention, saved exceptions that the law allowed exclusively to the victim the criminal action. The dispositive was related to the victim's consent manifested after the commitment of the crime and the expression "criminal action" was used by the legislator meaning "penal pursuit" and not criminal behaviour. The consent of the offended, when manifested after the practice of the fact, did not excluded the penal responsibility of the subject, except when it meant forgiveness, hypothesis in which occurred a cause of extinction of the penal pursuit.
The Sá Pereira Project, in its prime conception, anticipated the victim's consent as a reason of exclusion of the penalty when the object of the crime was a good or juridical interest that its correspondent titled person could validly dispose.
The Alcântara Machado Project, in its article 14, I, determinated: "it won't be either punishable who practice the action or omission with the consent of whom can validly dispose of the threatened or violeted right". However, the Reviser Commission understood the disposition was superfluous, that's the reason why the positive Penal Code doesn't treat about the subject.
The consent of the offended can work as:
1º) cause of exclusion of typecity; and,
2º) cause of exclusion of the illicitness of the conduct.
When the penal type describes the absence of the victim's consent as an element, the assent works as a cause of exclusion of typecity. That's what occurs to the crime of violation of dwelling, when the caput of the article 150, disposes: "...against the expressive or tacit will of who has the rights, ...". In that hypothesis, the non-consent of the offended is expressed in the type as an element. In the presence of consent, there's no typical adequation of the fact to the penal rule of incrimination. Thus, the consent excludes the typification.
In cases in which the penal type doesn't bring the disconsent of the offended as an element, when the person is capable and the object is juridically available, the consent works as a cause of exclusion of the illicitness of the fact. Thus, in the crime of loss, described in the article 163, caput, of the Brazilian Penal Code, there's no crime when the offended consents that the material object be damaged, destroyed or deteriorated.
In those cases, in which the assent of the offended has juridical relevance, there's the need of two requisites:
1º) that the juridical object be disposable. If the interest is not available, the fact is licit. V.g.: practice homicide with the consent of the offended. The fact remains a homicide, although can occur a cause of diminution of penalty (CPB, article 121, 1st paragraph);
2º) that the offended be able to consent. It's necessary that the will be expressed by whom had already reached the penal ability, i.e., 18 years of age, not spotted by any cause that takes away its valid character (unimputability by mental decease, mistake, dolus or violence).
This way, in the crimes against the person, the juridical relevance of the offended's consent depends, at the first place, on the availability or non-availability of the juridical object. When the interest is disposable, the consent excludes the delict. When unavailable, the consent can attenuate the penalty, but never exclude the crime. When the interest is disposable, the simple presence of the victim's consent doesn't exclude the illicit character of the fact. As we saw, it's necessary that the subject who consents have capability to act.
3. Classification of the Crimes Against Life in the Brazilian Penal Code
Are against life the crimes of:
1º) homicide (article 121);
2º) participation in suicide (article 122);
3º) infanticide (article 123); and,
4º) abortion (articles 124 until 127).
As for the subjective or normative element, the crimes against life can be:
1º) dolosos (dolus, trickery, deceit, fraud; defect of heart);
2º) culposos (culpa, negligence or fault, imprudence and unskilfulness; defect of intellect)
3º) preterdolosos or preterintentionais (further-trickery or further-intention)
The trickery crimes against life are:
1 - simple homicide (article 121, caput);
2 - privileged homicide (article 121, 1st paragraph);
3 - qualified homicide (article 121, 2nd paragraph);
4 - inducement, instigation or support to suicide (article 122);
5 - infanticide (article 123);
6 - self abortion (article 124);
7 - abortion provoked without the consent of the pregnant (article 125); and,
8 - abortion provoked with the consent of the pregnant (article 126).
There's only one type of culposo crime against life: the simple or qualified culposo homicide (article 121, 3rd and 4th paragraphs).
There's just one typical further-trickery form of crime against life: qualified abortion by grievous bodily harm or death (article 127).
"Under cover of the MEA CULPA, striking her breast so vigorously that everybody, even the lady with the red cushion, turned round toward her." -- The Three Musketeers, by Alexandre DUMAS
Three Topics: 1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code; 2. The Consent of the Offended; and, 3. Classification of the Crimes Against Life in the Brazilian Penal Code.
1. Penal Protection of the Physical Person and Juridical Person in the Brazilian Penal Code
The Brazilian penal legislator protects the human being since its conception. Hence, the penal tutelage beholds events that precede the birth by the legal typification of the crime of abortion.
Talking about crimes against the person, a fast interpretation leads to the conclusion that it concerns to the physical person, with the exclusion of the juridical person. However, in certain cases, the juridical person can be the passive subject. Thus, nothing impedes that a juridical being be the offender in the crime of defamation. A juridical person, such as a commercial enterprise or an association, can be the passive subject of the crime described in the article 139 of the Brazilian Penal Code, where there's the description of the crime of defamation, legally defined as "to impute to somebody an offensive fact to their reputation". The same happens about the crime of violation of dwelling, described in the article 150, caput, of the Brazilian Penal Code, which says "to enter or to stay, clandestine or astutely, or against the expressive or tacit will of who has the rights, in other's house or in its dependencies". Not only the physical person can be the passive subject of this delict. A commercial enterprise, in connexion with determined compartments of its headquarters, can suffer the illicit violation. Another example is found in the delict of violation of correspondence, in the article 152, according to which disposes that "abusing of the condition of an associate or an employee of a commercial or industrial establishment to, in total or in part, deviate, steal, subtract or suppress correspondence, or to reveal its content to a stranger".
2. The Consent of the Offended
The Brazilian Penal Code of 1890, in its article 26, c, anticipated the victim's consent did not excluded the criminal intention, saved exceptions that the law allowed exclusively to the victim the criminal action. The dispositive was related to the victim's consent manifested after the commitment of the crime and the expression "criminal action" was used by the legislator meaning "penal pursuit" and not criminal behaviour. The consent of the offended, when manifested after the practice of the fact, did not excluded the penal responsibility of the subject, except when it meant forgiveness, hypothesis in which occurred a cause of extinction of the penal pursuit.
The Sá Pereira Project, in its prime conception, anticipated the victim's consent as a reason of exclusion of the penalty when the object of the crime was a good or juridical interest that its correspondent titled person could validly dispose.
The Alcântara Machado Project, in its article 14, I, determinated: "it won't be either punishable who practice the action or omission with the consent of whom can validly dispose of the threatened or violeted right". However, the Reviser Commission understood the disposition was superfluous, that's the reason why the positive Penal Code doesn't treat about the subject.
The consent of the offended can work as:
1º) cause of exclusion of typecity; and,
2º) cause of exclusion of the illicitness of the conduct.
When the penal type describes the absence of the victim's consent as an element, the assent works as a cause of exclusion of typecity. That's what occurs to the crime of violation of dwelling, when the caput of the article 150, disposes: "...against the expressive or tacit will of who has the rights, ...". In that hypothesis, the non-consent of the offended is expressed in the type as an element. In the presence of consent, there's no typical adequation of the fact to the penal rule of incrimination. Thus, the consent excludes the typification.
In cases in which the penal type doesn't bring the disconsent of the offended as an element, when the person is capable and the object is juridically available, the consent works as a cause of exclusion of the illicitness of the fact. Thus, in the crime of loss, described in the article 163, caput, of the Brazilian Penal Code, there's no crime when the offended consents that the material object be damaged, destroyed or deteriorated.
In those cases, in which the assent of the offended has juridical relevance, there's the need of two requisites:
1º) that the juridical object be disposable. If the interest is not available, the fact is licit. V.g.: practice homicide with the consent of the offended. The fact remains a homicide, although can occur a cause of diminution of penalty (CPB, article 121, 1st paragraph);
2º) that the offended be able to consent. It's necessary that the will be expressed by whom had already reached the penal ability, i.e., 18 years of age, not spotted by any cause that takes away its valid character (unimputability by mental decease, mistake, dolus or violence).
This way, in the crimes against the person, the juridical relevance of the offended's consent depends, at the first place, on the availability or non-availability of the juridical object. When the interest is disposable, the consent excludes the delict. When unavailable, the consent can attenuate the penalty, but never exclude the crime. When the interest is disposable, the simple presence of the victim's consent doesn't exclude the illicit character of the fact. As we saw, it's necessary that the subject who consents have capability to act.
3. Classification of the Crimes Against Life in the Brazilian Penal Code
Are against life the crimes of:
1º) homicide (article 121);
2º) participation in suicide (article 122);
3º) infanticide (article 123); and,
4º) abortion (articles 124 until 127).
As for the subjective or normative element, the crimes against life can be:
1º) dolosos (dolus, trickery, deceit, fraud; defect of heart);
2º) culposos (culpa, negligence or fault, imprudence and unskilfulness; defect of intellect)
3º) preterdolosos or preterintentionais (further-trickery or further-intention)
The trickery crimes against life are:
1 - simple homicide (article 121, caput);
2 - privileged homicide (article 121, 1st paragraph);
3 - qualified homicide (article 121, 2nd paragraph);
4 - inducement, instigation or support to suicide (article 122);
5 - infanticide (article 123);
6 - self abortion (article 124);
7 - abortion provoked without the consent of the pregnant (article 125); and,
8 - abortion provoked with the consent of the pregnant (article 126).
There's only one type of culposo crime against life: the simple or qualified culposo homicide (article 121, 3rd and 4th paragraphs).
There's just one typical further-trickery form of crime against life: qualified abortion by grievous bodily harm or death (article 127).
