The danger of relativizing absolute vulnerability under art. 217-A of the Brazilian Penal Code and the improper use of the distinguishing technique:

a critical analysis in light of protective constitutionalism and comparative law

Abstract

This article analyzes the constitutional compatibility of applying the distinguishing technique to relativize the absolute vulnerability established in art. 217-A of the Brazilian Penal Code. It departs from the premise that the criminal offense of rape of a vulnerable person establishes, by legislative choice, the legal incapacity to consent of persons under the age of fourteen, as a mechanism of reinforced protection of the child's sexual dignity. The research examines the limits of applying distinguishing in Brazilian law, taking into account the principles of criminal legality and the comprehensive protection of childhood. Drawing on doctrinal, jurisprudential, and comparative law analysis, the article discusses the use of this interpretive technique in judicial decisions that seek to mitigate the legal presumption of vulnerability on the basis of the factual circumstances of the specific case. The study also engages with scientific evidence on cognitive development in childhood and with international standards for the protection of children and victims of sexual violence. It is concluded that the vulnerability provided for in art. 217-A constitutes a normative protective category linked to the constitutional model of reinforced protection of childhood, and cannot be relativized by hermeneutical constructions that reintroduce subjective assessments of the victim's maturity or behavior.