The Economist – from the print edition, 04/07/2012
TO HAVE sex with young girls, said Brazil’s highest criminal court on March 27th, is “immoral and reprehensible”. But a man who had sex with three 12-year-olds in 2002, it decided, had committed no crime. Since 2009 the age of consent in Brazil has been 14, but at the time there was merely a presumption that sex with a child below that age involved violence and should therefore be regarded as rape. Reversing a previous ruling by other members of the Higher Court of Justice (STJ), the judges decided that this presumption could not be absolute, but must stand or fall on the facts of each case.
In this case, all three children worked as prostitutes. The mother of one had previously told a lower court that her daughter often missed school to join the other two turning tricks in the town square. That showed that the girls were “far from innocent, naive, ignorant or ill-informed about sexual matters,” the judges said. Whether they were mature enough to consent had to be decided with reference to their wide sexual experience, not just their age.
The judgment has provoked uproar. A congressional committee said it violates children’s constitutional rights, perhaps opening the way for referral to the supreme court. The government will seek to reverse the ruling’s effect. The president of the STJ has offered to take another look, though he warned that the judgment was technical and based on the law as it stood.