A honra e o infanticídio

Abstract

When the news of an attempt on the life of a fetus or a newborn reaches the knowledge of society it arouses a feeling that this fact cannot go unpunished. Society does not admit that the death of a newborn, who was killed, during childbirth or soon after, does not have a culprit. When this culprit is a mother who kills her own child, impelled by a strong personal drama, characterized by a situation of vulnerability, consisted of moral abandonment, misery, pain, which leads to despair, causing psychic disturbance, arrives the notions of reason of honor and influence of the puerperal state. When subjected to trial by a Jury Court, jurors, analyzing the infanticide practiced by the mother, will identify two paradigms from a legal point of view of the crime of infanticide: one of honor and other of life. The paradigm of honor, which admitted the infanticide committed in cases of honor defense, and the paradigm of life, which considered it an attempt to life, even a incipient life, of the fetus or the newborn, were always object of discussion, mainly after the 1890 Penal Code validity. After the 1940 Penal Code validity, the honor paradigm has lost strength since the legislator no longer conceptualized infanticide reasoned on honor, the basis of the psychological system, and started using the physiopsychological system, oriented by the influence of the puerperal state. More than 77 years have passed since then, and it is time to question whether the infanticide typification in the current Penal Code showed itself sufficient so that the criminal standard precept could fulfill its duty as a guarantor. The analysis of processes will demonstrate the theoretical and practical problems that present themselves when characterizing and demonstrating the crime of infanticide, proving that the concept deserves to be reviewed, and for the typification of infanticide the psychological system, founded on the motive of honor, should be recovered with a revised concept. In order to review the concept of motive of honor, with the consequent typification of a conduct, the analysis of the historical-legislative course of the crime of infanticide, as well as the treatment it received in the foreign law, will be fundamental for this purpose. Besides that, the examination of the psychological and physiopsychological systems will be important to understand the crime of infanticide as a modality of privileged homicide. Presenting a revision of the concept of motive of honor will allow that with the typification to be proposed for the crime of infanticide it will be possible to blend in the same penal norm both paradigms of honor and life. With the paradigm of honor, it is sought that the criminal law fulfills its guarantor s function and allow that the mother who practice an infanticide respond for a crime of infanticide when she has committed a crime of infanticide and with the paradigm of life, it is sought that the penal norm can efficiently protect the legal good life of the fetus or of the newborn who has suffered an attack, with the prediction of a penalty that adequately punishes the perpetrator of infanticide.