Opinion of Rogério COPETO: FEMALE GENITAL MUTILATION, CHASE AND FORCED MARRIAGE
The Parliament approved last Tuesday 4th, a Lei n.º 83/2015 of 5 August, amending the Criminal Code by 38 time, in order to empower the crime Female genital mutilation, creating crimes Chase and Forced marriage and to amend the crimes Violation, Sexual coercion and Importunação sexual, in compliance with the Istanbul Convention and shall enter into force on the day 5 of September.
Rogério COPETO
Lieutenant Colonel of the GNR, Master in Law and Security and Homeland Security Auditor
Head of the Education Division / Command Doctrine and Training
Female genital mutilation is the ritualistic removal of part or all sexual organs external female, always being removed clitoris and clitoral prepuce and, the most serious form, the removal of big and labia minora and termination vulva (infibulation), as well as being a serious offense against the physical integrity of young women who are subjected to ritual, It not infrequently results in his death.
So, this practice has now been typified as an autonomous crime in our Criminal Code, It has been included a new article on the "Crimes against physical integrity". This new crime to Article 144a has the epigraph "Female genital mutilation"And punishes with imprisonment of 2 a 10 years "Who genitally mutilate, total ou parcialmente, female person by clitoridectomy, of infibulação, excision or any other harmful practice of female genital organs for non-medical reasons ". The preparatory acts of this new crime are also punishable by imprisonment of up to 3 year old.
Although this practice in the past can be punished for the crime of bodily harm, the perpetrators were not being held accountable, because of this crime to be semi-public and need to be formalized an abuse, fact that rarely happened, It is almost always the complaint presented by the Health Bureau, when the victim attended there to be bailed out.
However the Criminal Code in Article 149 while continuing to consider the physical integrity freely available, to consent effect, such consent in the case of victims of crime the crime of female genital mutilation, does not in any case the unlawfulness of the act.
In its most severe form, the Female genital mutilation can also be considered an offense to qualified physical integrity, if the bodily harm is produced in circumstances which reveal special reprehensibility or agent of evil, which is punishable with imprisonment 3 a 12 years and in the case of preparatory acts, with imprisonment of 1 a 5 year old.
Also with regard to the prescription of the crime and pursuant to the amendment of Article 118, the crime of female genital mutilation, It is the smallest victim, the prosecution is not extinguished, the effect of prescription, before the victim make up 23 years.
In what concerns the phenomenon of Stalking, this conduct is a crime and is included in the "Crimes against personal freedom", under the heading of "Chase", which established a Section 154 of the Penal Code.
This conduct that literature calls with foreignness Stalking, It characterized by a set of behaviors, consisting of a permanent harassment, through contacts with the victim, surveillance, segments and persecution, causing great discomfort to the victim and in contravention of the reservation from your private life, and that in its most severe form can exist bodily harm and homicide.
The creation of this new type of crime will allow Stalkers not go unpunished, because of the difficulty of last fall this behavior in other types of crimes, such as the threat, coercion or domestic violence even when the perpetrator of Stalking It was spouse or former spouse of the victim or maintains or has maintained a dating relationship or a similar relationship to that of spouses, even without cohabitation.
The Stalking It is now punished with imprisonment up 3 years or a fine penalty, where a heavier penalty does not fit him under another legal provision, e pratica este novo crime “Who, repeated so, stalk or harass another person, by any means, directly or indirectly, properly causing HIM fear or concern or to undermine their freedom of determination". The attempt is punishable and the accused can apply the accessory penalties of prohibition of contact with the victim for a period of 6 months 3 years and frequency requirement of specific prevention Typical Chase conducts programs. The accessory penalty of prohibition of contact with the victim should include the removal of the residence or workplace and this compliance should be monitored by technical means of control at a distance. This new crime is because the semi-public criminal proceedings on a complaint.
Also "Forced marriage"Is a crime typified in Article 154-B and similar to Chase crime belongs to crimes against freedom Personal, reads as follows: "Who compels another person to enter into marriage or union equivalent to marriage shall be punished with imprisonment up 5 years". They are also punished the preparatory acts, to lure the victim to different territory of their residence in order to constrain the contracting marriage or union equivalent to marriage, with imprisonment up 1 year or fine of up to 120 days.
The crimes of persecution and forced marriage can be aggravated if the victim or the person to commit suicide or attempt suicide, and punishment, in the case of the first, be imprisonment 1 a 5 year old, and in the case of the second be imprisonment from 1 a 8 year old
Under "Crimes against sexual freedom and self-determination" the crime was changed from "Sexual coercion " that is practiced by "Who, by means of violence, serious threat, or after, for this purpose, to have become unconscious or unable to resist post, compels another person to suffer or practice, to you or others, Relay sex, It is punished with imprisonment of 1 a 8 year old", and increased the penalty of imprisonment for situations where it is not used violence coercion, passing this behavior to be punished with imprisonment up 5 year old, when before it was even 2 year old.
Also the crime of "Violation"I have been changed, and practicing this crime "Who, by means of violence, serious threat, or after, for this purpose, to have become unconscious or unable to resist post, embarrass another person:
- a) The suffering or practicing, to you or others, copulation, coito anal ou coito oral; or
b) The suffer vaginal or anal introduction of objects or body parts. " Having seen this crime the penalty of imprisonment increased as well, for whom the practice without violence, It is punished with imprisonment of 1 a 6 year old, when before it was even 3 year old.
The last crime that has changed is the crime of "Importunação sexual", which is now practiced by "Who harass another person, practicing before her acts of flamboyant character, formulating sexual content proposals or embarrassing to the contact of a sexual nature, It shall be punished with imprisonment up 1 year or a fine of up to 120 days, if a heavier sentence is not applicable by virtue of another legal provision ". The main change was the introduction of this article as criminal conduct, the "formulation of sexual content of proposals", having also been increased criminal frame was once punished with a fine of up to 120 days.
Also as it concerns the presentation of the complaint for the crime of sexual coercion and rape, when the procedure depend on abuse, the prosecutor may initiate the same, within six months from the date you became aware of the act and of its authors, where the interests of the victim advises.
As main conclusion, it turns out that this 38th amendment to the Penal Code aimed to comply with the constant in the Istanbul Convention, of 11 May 2011, with regard to the inclusion in our criminal law the crimes mentioned above.
The Istanbul Convention is an international instrument of the "Council of Europe on the Prevention and Combating Violence against Women and Domestic Violence" and was approved by the Assembly in Republic 21 January 2013, through Resolution No. 4/2013.
In that resolution set out the need for states to adopt legislative measures to penalize conduct now included in the Penal Code, but the resolution also proposes the need to adopt other measures, in particular within the Prevention, referred to the need to adopt the necessary measures to promote changes in socio-cultural patterns of behavior of women and men and prevent all forms of violence covered by the Convention's scope, practiced by any natural or legal person. And shall also be adopted measures in the areas of "Awareness", "Education", "Professional Training", implement "preventive intervention programs and treatment" and promoting "Participation of the private sector and the media". Also in the shed Protection and Support, It is said to be the adopted legislative or other measures as may be necessary to protect all victims from any further acts of violence and in accordance with its domestic law, the legislative or other measures as may be necessary to ensure the existence of appropriate mechanisms for all relevant state services, effective cooperation in the protection and support of victims and witnesses of all forms of violence. It is also proposing the implementation of measures under the "Information", the "General Support Services", the "assistance for the individual / collective complaints", the "specialized support services", of "safe houses", the "Telephone Helplines", the "Support for the victims of sexual violence", the "Protection and support for child witnesses", the "Complaint" and "Complaint by professionals".
It is true that many of the proposed measures are already implemented, but the approach should be continued in Prevention, It is also the main objective of creating new types of crime, discourage the practice.
