THE LEGAL RELEVANCE OF CONSENT OF CHILDREN AND
ADOLESCENTS UNDER 14 IN STATUTORY RAPE: Between Legal
Theory and Feminist Theory
Ana Carolina Cartillone dos Santos
Faculdade de Direito/Universidade de So Paulo
anacarolinacartillone@gmail.com
Objective
The research aims to deal with the issue of
legal relevance of consent in the statutory rape
offense (as classified in the article 217 of the
Brazilian Penal Code), by analysing its tension
with both feminist theory and legal theory. Thus,
we intend to identify whether the compatibility
between feminist critique of the notion of
consent and criminal policy concerning
specifically the sexuality of children and
teenagers under 14 is real or merely apparent.
Materials and Methods
In order to understand the legal outlines of the
notion of consent, the research was primarily
focused on studying legal texts and 46 cases
of the brazilian Superior Court of Justice and
analyzing the discussions critically in the light of
legal good theory and also from the theory of
social adjustment. Later, in a comparative
perspective, as an effort to expose potential
tensions with criminal law theory, we sought to
identify contributions in feminist theory
regarding the meaning of consent from a critical
perspective.
Results
It was possible to note an area of conflict
between legal theory and feminist theory. While
the notion of consent in criminal law is
considered from the perspective of the
individual, in critical feminist theory this very
assumption, based on liberal ideas, is subjected
to radical criticism, which means both notions
of consent can not be taken as equivalent.
Conclusions
It can be concluded that the notion of consent
regarding sexuality of girls and adolescents can
not be subjected to politicization in the sphere
of criminal law without compromising to some
extent the only progressive and democratic
content that it is possible to glimpse in it, even
skeptically. So the alleged alternative use of
criminal law in this case is bound by its own
subsidiary rationality, based on the purpose of
litiming state power and fundamentally focused
on the individual.
References
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n. 45, p. 225-258, 2016. MATHIEU, Nicole-
Claude. When yielding is not consenting.
Feminist Issues, v. 10, n. 1, p. 51-90, 1990.
PATEMAN, Carole. The Sexual Contract. 1
Edio. Stanford: Stanford University Press,
1988. 623 pp. TAVARES, Juarez. Teoria do
Injusto Penal. 1 Edio. Belo Horizonte: Del
Rey, 2000. WAITES, Matthew. The age of
consent: Young people, sexuality and
citizenship. 1 edio. New York: Palgrave
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