Imagine the following concrete case: A woman in love with a man who, unobtrusively, attempts to conquer him in every way, can not succeed in her attempt.
This woman, in a way still being investigated, obtains by cell phone application very well known in the market and worldwide used a filming of the man in carnal conjunction with another woman in a motel and it proposes that it practiced with her sexual relations and other libidinous acts to the argument that if she refused, she would send the video to his wife via the aforementioned application.
The man, in the face of this embarrassment, accepts and goes with her to the woman’s apartment and practices libidinous acts in her. Sorry, look for the police officer and ask him if there is a crime committed by the nymphomaniac woman.
Before this of the concrete case what would be the best typification?
As it is a crime, the crime of rape is pluriofensive, that is, it has several legal rights protected, and when carried out its typical figure, consequently violates the individual freedom and sexual dignity of the human person.
The crime of rape has in its typical figure the crimes of articles 146 (illegal embarrassment) and 147 (threat), both of the Criminal Code.
Crimes of threat and illegal embarrassment are subsidiary to the crime of rape. Therefore, when the hypothesis is a crime of rape, the agent employs violence or serious threat as a way of forcing the victim to practice or allow her to practice libidinous acts in order to satisfy her lust.
The violence or the serious threat aims to dominate the victim to make possible the acts of sexual satisfaction against her. The rape, as said, to protect physical security and life, insofar as the result of serious injury and death as qualified forms of crime is perceived, has as elementary violence or serious threat, thus absorbing the crimes of injury, de facto path or threat.
It could not be a crime of illegal embarrassment, although the libidinous acts practiced in a private place are lawful. In other words, to embarrass someone by threatening to do with it what the law does not command, being this act of a sexual nature, the conduct is appropriate, due to the principle of specialty in the crime of rape.
Urges to point out that, despite the elementary “serious threat” in the type of art. 213 of the CP, should not interpret the threat here as it is made of article 147 of the CP, that is, according to the doctrine the “serious threat” is not interpreted as necessarily an unjust and serious evil, just so that the evil is serious and likely to be fair, that is, not foreseen as prohibited, as occurred in the specific case. As the doctrine warns;:
“It is worth mentioning that the evil promised by the agent, in order to relate sexually with the victim against his will, should not be necessarily unfair, as occurs with the crime typified in art. 147 of the Criminal Code. So imagine the hypothesis of the one who, knowing of the infidelity of the victim towards his husband, compels him, with him, also to relate sexually, otherwise he will tell the whole fact to the other spouse, who will certainly separate from it.
In this same sense, other doctrinators follow the same line of reasoning;
“The threat is not required to be unfair. Even if the victim is promised a just evil, crime persists. For example, if the active subject requires a woman with him to have vaginal intercourse, stating that in case of refusal, he will reveal a (true) crime committed by the police, the sexual offense is fully characterized. “
Consequently, it is not atypical, as it would appear to be because of the evil of telling the wife of the victim his betrayal, as a method of promising an evil, however just, as the non-observance of the conjugal duty of reciprocal fidelity , provided for in art. 1566, I of the NCC.
Finally, there is no use of deception or lying, since the filming was not an assembly, that could persuade the victim. The elemental fraud presupposes a trick or device that induces or keeps the victim in error, or through the victim’s own misconception, and the active subject omits to reveal the truth, pretending to be a true “sexual estelionato”, which does not fit with the case on screen.