Th, soccer player of the Parisian team, PSG, was accused of practicing one of the crimes against sexual dignity, rape, provided in art. 213 of the Criminal Code.
According to the press, on May 15, 2019, a woman with the undisclosed identity would have traveled to Paris to meet the player in a Hotel.
There is information that the woman would have filmed allegedly aggressive attitudes of the player before the crime occurs.
Thus, it would have added in the Bulletin of Occurrence images and a ‘dossie’ that in theory would prove or corroborate its version.
In view of the problem, based on technical and legal, we have the following initial notes.
At first, in light of what was reported, Neymar would have committed in theory the crime of rape, foreseen in art. 213 of the Penal Code:
Art. 213. Constranger someone, through violence or serious threat, to have a carnal conjunction or to practice or allow him to practice another libidinous act:
Penalty – imprisonment, from six (6) to ten (10) years.
From the simple reading of the legal device it is perceived that the penal norm punishes the act of violent libidinagem, that coagulates, force, where the agent seeks to constrain the victim to the carnal conjunction or to practice or to allow with him to practice another libidinous act.
The means of execution of the crime is violence or serious threat.
Violence must be material, that is, the employment of physical force sufficiently capable of preventing a woman from reacting. The serious threat is conceptualized when there is moral violence, direct, just or unjust, in which victim sees no alternative but to give in to the sexual act.
Thus, according to the bulletin of occurrence, the criminal would have used violence as an enforceable means to commit the crime.
Analyzing the evidence produced, the video gathered by the victim may be the most robust element yet, but not enough to condemn the player.
As the victim alleges, the player was altered and showed signs of aggression. This supposed aggression must indicate that there was a conscious will to embarrass the woman.
To presume and to extend that the aggressiveness from a discussion would culminate in a rape is not sufficient proof for condemnation. In fact, it is a clue that needs investigation. Perhaps an initially aggressive attitude could suggest a bodily injury as well.
Rogério Sanches Cunha (Criminal Law: special part, 2010, p.251) warns us that the individuality of the victim must be taken into account, such as age, sex, educational level, etc. are factors that can not be disregarded in the concrete case. Therefore, these circumstances can demonstrate whether or not the crime has occurred.
Therefore, penalties in criminal law fall upon specific persons, and offenses also affect concrete persons. Thus, the value judgment of the judge can not have facts without evidence sufficient to condemnation.
We know of the difficulty in proving crimes of rape, in the absence of witnesses and even the embarrassment of the victim to go to the police station. However, in the criminal procedural system, it is incumbent upon the accusing body to demonstrate the elements of the typical fact, illegality and guilt. Otherwise, whoever the principle of ‘in dubio pro reo’ should be applied.