STALKING: as implicações da incorporação do tipo penal de perseguição no ordenamento jurídico brasileiro

Abstract

Since the publication of law 14,132/21, which added art. 147-A of the Penal Code, specifically the chapter on crimes against individual freedom, stalking was classified as the crime of “persecution”. Furthermore, the aforementioned legal diploma revoked art. 65 (“disturbing the peace”) of the Criminal Misdemeanors Law. While a new rule becomes part of the national legal system, criminal legal dogmatics, through its scholars, undertake an extensive analysis of the objective criminal type. In turn, forensic practice needs to adapt to legislative change, seeking practical solutions both for processes that deal with facts that occurred at the time of the repealed law and for new cases that occurred under the auspices of the recently arrived legislation. Between these two domains (dogmatics and practice), its actors will sometimes be in conflict, sometimes have converging conceptions about the new crime, one way or another, both will be experiencing the implications of the entry of a criminal type into the Brazilian legal system. In this sense, the following question emerges: does the current wording of the criminal type of stalking present a safe criterion for delimiting and distinguishing relevant and irrelevant conduct for Criminal Law? To answer this question, a survey and bibliographic review on the topic were carried out; In addition, a documentary research was also carried out before the Court of Justice of the State of Rio de Janeiro, based on a survey of 118 cases judged in the second level of jurisdiction, which occurred between 04/1/2021 and 11/09/2023, in which the conduct attributed The perpetrator of the incident received the criminal classification of “persecution”. Therefore, this is a research with a basic purpose, with an inductive and descriptive objective, with a qualitative approach, through the exploratory method of documentary and bibliographic procedures. In this way, it was possible to carry out a qualitative analysis of the objective criminal type, focusing on the central points of this new crime, such as habituality, instantaneity or permanence; the number of acts and time lapse to be observed to define the crime; the requirement for a result and its nature; the offense to criminal legal property and its characterization as a crime of danger or damage; the requirement or not of the victim's dissent, in addition to its suitability for the principle of legality.