criminal legislation classifies and qualifies certain crimes. 211 The creation of an
autonomous offense is not the only tool available to the State to highlight the
seriousness of a behavior. Among other mechanisms, there is the possibility of
attributing a specific nomen juris to a crime in its aggravated form, giving greater
prominence and perception of seriousness to the modality in question.
112. In Brazil, the discussion on the classification of the act of killing a woman for reasons
of her gender, considered a structural problem in the country, has provided valuable
lessons. Despite the fact that Brazilian criminal legislation already provides for the
concept of homicide qualified due to clumsy motive, a category in which cases of
death due to gender violence could fall, the Brazilian legislator chose to create a
specific aggravating circumstance for the homicide of women as a result of their sex.
113. Law no. 13.104/2015, however, went beyond including the mere description of the
conduct in the Criminal Code, 212 providing for the inclusion of the name "feminicide"
as the title of this aggravating circumstance, 213 with the purpose of giving greater
visibility to the occurrence of homicides of women for gender reasons and promote
awareness, sensitize and change the patriarchal mentality that underlies the high
rates of gender violence. 214 Furthermore, by making the problem visible to the
population, the State reinforces the obligation of its authorities to take measures to
prevent the death of women, through the creation of appropriate public policies for
the prevention and eradication of violence, as well as the criminal prosecution of the
aggressor. 215 Naming feminicide fulfills the essential function of reversing the social
perception of gender violence as something that "mitigates" - and does not aggravate
- a homicide, an archaic perception regarding "honor crimes" whose consequences
remain entrenched in contemporary societies. 216 Similarly, incest has been
recognized for much of history as a circumstance that mitigates or even excludes
rape as a punishable offense, a perception actively countered by the establishment
of the nomen juris "incestuous rape."
e. Partial conclusion
114. Therefore, by serving the imperative of combating the "culture of incest" without
increasing the number of crimes classified in the Criminal Code, the creation of the
nomen juris "incestuous rape" is a reparative measure of non-repetition applicable
in this case. Specifically, it would try to call the form of the offense in Article 308
("rape") where aggravated by incest as "incestuous rape" and the form aggravated
by incest in Article 308 bis ("rape of a child or adolescent") as "incestuous rape of a
child or adolescent." I believe that this solution adopted by the Court adequately
fulfills the purpose of giving greater visibility to incestuous rape, the importance of
which was highlighted by Ms. Losada herself:
211
Cf. ASHWORTH, Andrew. Principles of Criminal Law (6a ed.). Oxford: Oxford University Press, 2009, p. 7880.
212
The new law also modified the Appalling Crimes Law (Law 8,072/90) to include feminicide.
213
Brazilian Criminal Code, Art. 121, para. 2nd, section VI c/c art. 121, para. 2º-A, sections I and II.
214
Cf. CLADEM. Contributions to the debate on the criminal classification of femicide/feminicide (2012), p.
177-229. Available in Portuguese at:
http://www.compromissoeatitude.org.br/wpcontent/uploads/2013/10/CLADEM_TipificacaoFeminicidio2012.p
df. Accessed November 29, 2022.
215
Ibid.
216
Cf. MORON, Eduardo; MATTOSINHO, Francisco. A lei n.º 13.104/2015 (feminicídio): simbolismo penal ou
uma questão de direitos humanos? Revista de Derechos Humanos en Perspectiva (Magazine of Human Rights
in Perspective), vol. 1, 2 (2015), p. 245.
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