In a marathon day, the Third Chamber on Criminal and Correctional de La Rioja, ordered the young William Brizuela and sentenced to 19 years in prison for finding "Criminally responsible" of crimes Gravely Outrageous Sexual Abuse and Attempted Murder in Grade . The victim in this case is a 14 years old. The operative part of the sentence was read via a unanimous verdict. The assailant (photo) apologized to his family and the victim.
The accused was found guilty of sexually abusing, but not intercourse, a girl of 13 years and after trying to assassinate her. The prosecution had sought a sentence of 20 years in prison. The young defender described the event as a crime of serious injury. In a marathon day, the Third Chamber on Criminal and La Rioja (also called the Criminal Chamber) last night condemned the young Guillermo Brizuela and sentenced to 19 years in prison for authoring "criminally responsible" for crimes of sexual abuse seriously outrageous and attempted murder. The victim in this case is a 14 year old girl, the fact that when he was 13. The operative part of the sentence was read through a verdict unánime.La hearing yesterday, not counting the intermission, lasted nearly 10 hours. As he had anticipated the independent, the Criminal Chamber had qualified as a priority case and the facts Brizuela demonstrated. In the morning, culminated with the presentation of witnesses and from five in the evening was the turn of the arguments and the verdict. Specifically, the conviction, in its operative part, was known to nine in the evening. The presentation of arguments was an instance of intense analysis and debate by defending Brizuela, exercised by counsel Soledad Varas; of the lawsuit, represented by counsel Remo Bolognesi, and the Attorney, who was the prosecutor Gustavo exponent Zalazar.
EPISODE: The event, which was the result of trial, occurred in the early hours of July 21 last year. Brizuela concurred with the girl to an apartment on Belgrano street because the accused had told him that her boyfriend would also go there. However, Leandro Mercado Luna, 16, never arrived at the apartment. Brizuela attacked the victim with a knife, punched applied, sprinkled with alcohol and sexually abused her even without intercourse. The victim fled the apartment through the roof and then jumped to the sidewalk. Brizuela pursued the witness but to descend from the ceiling was injured ankles. In the allegations, the representative of the Juvenile Assessment, counsel Pueyrredón Martin, said the evidence presented in the debate "are suitable to say with certainty that, without doubt, the conduct of Brizuela frames" in the crimes for which he was convicted. "Attitude sadistic" His colleague, Bolognesi Remo also explained that it credited the responsibility of the accused and provided an extensive analysis in which he described the conduct of the defendant as "sadistic." The prosecuting attorney had no hesitation in holding that the girl had an experience "heartbreaking." In this regard, said he was "deceived by Brizuela" to accompany the department where the attacked, abused her and tried to kill her. He stated that the defendant pretended on several occasions, maintaining a telephone with the boyfriend of the child to achieve their intentions. Bolognesi considered that the young Brizuela had an attitude "Machiavellian", which used the age difference (she's 13 and he 25 years) and that its action was increased. In describing a chronology of events, Bolognesi said that when the victim and the perpetrator were alone in the apartment, the latter rushed at her. Then, said the lawyer, beaten and attacked with a knife "without hearing his appeal." He stressed that the fact got worse and it showed blood stains were inside the building. "We must not forget that the victim was a child. Its capacity was exceeded, "he argued. Later, the victim was taken to the terrace and there's another event started." To the lawyer, on the terrace, the lower, stripped and sexually abused. Further, said that when the girl flees roofs did "naked." The girl was subjected without pause. Was assaulted physically and morally humiliated. The accused did not withdraw his action, "he said. Before fleeing, the victim was sprayed with alcohol but, as stated in the hearings, lighters that the accused had not worked. The prosecutor Gustavo Zalazar was asked to apply penalty for the accused. In this sense, the prosecutor requested a sentence of 20 years in prison and considered that there are elements to determine their liability in the two crimes he is incriminating. Zalazar acknowledged that there is a medical report attesting to the sexual abuse but reasoned that the words of the victim, the blood-stained underwear are essential evidence to support the accusation.
DEFENSE: For its part, the defense of Brizuela gave an interesting analysis of the case and directed the attitude of the accused in the crime of serious injury. According to Soledad Varas, the crime of attempted murder "requires" a direct intention, ie, "intent to kill." A its discretion, in the debate was not credited for what purpose de Brizuela. Even the prosecutor noted that coincided in their thinking because he could not determine what the intention of the young. "What did he do Brizuela?, What prevented kill her?" He asked. He added that even the girl's medical report established that after the attack, his life was "in danger". In the absence of a specific decision in this case the killing, Varas said that the attitude of your customer fits the crime of serious injury. With regard to sexual abuse, counsel specified that the crime must have two requirements: "An extension in time and sexual submission." According to Varas, these two aspects "are not accredited." Another fact that contributed Varas is that the expansion of the charge, or when the defendant was accused of alleged sexual abuse seriously outrageous, it was through a data "subjective" of the girl. That is why the Court requested that the sentence on facts and not "on assumptions."
Verdict: The presentation of arguments ended at 19. After that time, the sentencing court, composed of judges Roberto Pagotto, Hector Oyola and Luis Antonio Marino Pertile, ordered a recess to define the verdict of the case. It is recalled that this instance was at the request of defense attorney Soledad Varas. After an hour, Secretary of the Criminal Chamber, counsel Alicia López Sara Douglas, was tasked to read the operative part of the sentence. The end of the hearing was marked by disagreement Brizuela family when they leave the room shouted "this is an injustice." The tears, the anguish and pain was the common denominator that was observed in the two families who participated in the debate.
* (Note: The Journal textual Independent)
is attempted homicide
A. General.
is understood that in addressing the crime of attempted murder in the criminal purpose equate with fraud, attempted since the degree of imposed on us forget for a moment of manslaughter, and that the blame does not support attempted.
criminal actions reach the peak of its development with the consummation of the crime, in contrast to this, actions that do not reach consummation, by circumstances beyond the control the agent attempted to be as long as the figure in question
supports such a situation, as in the case of homicide.
a.1. Criminality.
The attempt is an institute that still remain in the general part of the Criminal Code establishes the need for a sanction for its author, the offender would be tempted. It is not, in the attempt, but a separate crime of criminal conduct is to punish unfinished where the degree of danger shown by the agent. For in this vein the person who intends to commit a murder, simple or aggravated by the case, beginning execution but without achieving the consummation by circumstances beyond their will be the crime of attempted murder, and not as commonly said "attempted murder." The reason for the sanction in an attempt has been the subject of various justifications for the most outstanding Argentine criminal law doctrine. Basically there are two main streams (objective and subjective). As sostuviéramos before the subject can be punished criminally, on the basis of running the risk that doeth legally protected by the rule, in this case human life. On the contrary, subjective thesis focuses on fraud by the staff deployed by the action of infringing or that affect the legal right protected by criminal law background. In short we can say that the case of attempted murder or attempted to be taken into account necessarily the legal negative value denotes the conduct of the perpetrator. Rounding
we can also say that the criminal punishment, that the attempt is set for the subject, responds to the need to protect the interests of individuals, as well as society as a whole. It is not doubt that the outbreak threatens the sanctity of those, in a way that disturbs the social fabric. Going further exegetical analysis of the current legislation, we note that damage to the interests of human beings affects in a decisive way the legal system of society. But also in a subtle way, the penalty for attempted to establish, as it does, the need to avoid the real risk that the harm occurring, ie that the crime goes from being tempted to be consummated, and the damage actually specifically occur unless there is in the episode concerned a voluntary dismissal, as is stipulated in Article 43 of the Criminal Code.
also observed in the attempted murder, simple or aggravated, the externalization of a firm and determined will hostile to the law.
A. General.
is understood that in addressing the crime of attempted murder in the criminal purpose equate with fraud, attempted since the degree of imposed on us forget for a moment of manslaughter, and that the blame does not support attempted.
criminal actions reach the peak of its development with the consummation of the crime, in contrast to this, actions that do not reach consummation, by circumstances beyond the control the agent attempted to be as long as the figure in question
supports such a situation, as in the case of homicide.
a.1. Criminality.
The attempt is an institute that still remain in the general part of the Criminal Code establishes the need for a sanction for its author, the offender would be tempted. It is not, in the attempt, but a separate crime of criminal conduct is to punish unfinished where the degree of danger shown by the agent. For in this vein the person who intends to commit a murder, simple or aggravated by the case, beginning execution but without achieving the consummation by circumstances beyond their will be the crime of attempted murder, and not as commonly said "attempted murder." The reason for the sanction in an attempt has been the subject of various justifications for the most outstanding Argentine criminal law doctrine. Basically there are two main streams (objective and subjective). As sostuviéramos before the subject can be punished criminally, on the basis of running the risk that doeth legally protected by the rule, in this case human life. On the contrary, subjective thesis focuses on fraud by the staff deployed by the action of infringing or that affect the legal right protected by criminal law background. In short we can say that the case of attempted murder or attempted to be taken into account necessarily the legal negative value denotes the conduct of the perpetrator. Rounding
we can also say that the criminal punishment, that the attempt is set for the subject, responds to the need to protect the interests of individuals, as well as society as a whole. It is not doubt that the outbreak threatens the sanctity of those, in a way that disturbs the social fabric. Going further exegetical analysis of the current legislation, we note that damage to the interests of human beings affects in a decisive way the legal system of society. But also in a subtle way, the penalty for attempted to establish, as it does, the need to avoid the real risk that the harm occurring, ie that the crime goes from being tempted to be consummated, and the damage actually specifically occur unless there is in the episode concerned a voluntary dismissal, as is stipulated in Article 43 of the Criminal Code.
also observed in the attempted murder, simple or aggravated, the externalization of a firm and determined will hostile to the law.
a.2. And attempted fraud.
Different factors must be present in the attempted offense. The Criminal Code, article 42, not only establishes the institution of the attempt, but also in its formulation provides a normative approach in the concept of intent, this is so when he speaks of "the purpose of committing a specific crime." Hence the assertion made earlier in the sense of lack of culpable crimes is attempted.
The purpose of committing a particular crime is a requirement that arises from the subjectivity of the agent. It is of course a failed attempt to commit a crime, to give death to another person.
One subject who acts with intent to commit a particular crime and to that end is evident, willfully makes direct, but in any way with intent whenever possible the latter can not in any way, contain "the purpose of committing a specific crime." It is known as the fraud that eventually the subject only supports the commission of the crime, but not as an accurate and desired result, but as a contingency of their illegal act.
a.3. The testing and investigation.
Different factors must be present in the attempted offense. The Criminal Code, article 42, not only establishes the institution of the attempt, but also in its formulation provides a normative approach in the concept of intent, this is so when he speaks of "the purpose of committing a specific crime." Hence the assertion made earlier in the sense of lack of culpable crimes is attempted.
The purpose of committing a particular crime is a requirement that arises from the subjectivity of the agent. It is of course a failed attempt to commit a crime, to give death to another person.
One subject who acts with intent to commit a particular crime and to that end is evident, willfully makes direct, but in any way with intent whenever possible the latter can not in any way, contain "the purpose of committing a specific crime." It is known as the fraud that eventually the subject only supports the commission of the crime, but not as an accurate and desired result, but as a contingency of their illegal act.
a.3. The testing and investigation.
This is not a book about the attempt alone. However, we want to make clear that in matters of murder, attempted grade will depend largely on the evidence substantiating that instruction can collect the scene of action, as well as defendant's own statement, his eventual confession and background information.
We have mentioned in the first instance to the findings of evidence that is the same as saying evidence or proof, then the statement of the suspect.
We have mentioned in the first instance to the findings of evidence that is the same as saying evidence or proof, then the statement of the suspect.
This is because we have always maintained that the accused's statement is not an exhibit, but an act of defense. In this connection see "preliminary statement, the theory and practice", Journal of the Bar Association of the Capital Federal
, Number 24, June 1999, page 16, for Hugo Lopez Carribero).
is why the investigation of a fact presented for establishing, prima facie, the crime of attempted murder will be vital, for clarification, ballistic tests, sketches illustrating the location, history
the case, and also the mistakes that have incurred the accused at the time of the event.
B. The beginning of the attempt.
often not well defined the point at which the subject begins to kill, and even plan their concrete act. As a result make it difficult to know the moment when the attempt is born. It is therefore necessary to examine carefully the existence of circumstances beyond the control of the agent who had influence in the consummation of the offense. Both the fraud
as circumstances are indispensable presence of others, if you have a homicide tempted. Otherwise there can be attempted.
We said already that we are not the place to try to deepen the theme of the attempt as a legal institution, at least to the extent that it requires. However, the situation in relation to the crime of murder can be summarized as follows: "if the procedural records
comes perfectly clear that the subject developed the corresponding intent of wanting to kill another person, beginning the implementation of instruments aimed at achieving its goal, being that it was not just because of circumstances beyond their control, we face a homicide is attempted. "
not enough has been used in fact a firearm or a sharp knife, then the fraud can be deployed by the agent, it is clear that we have tried to consummate an abuse of weapons or injury that would not cause the death of the person injured, or the best that has been a voluntary dismissal. Carnelutti
the words of "The attempt is the average between rest and movement."
is such that in the attempted offense is easily seen that there is a special relevance in the theory of crime while moving teda embryonic characteristics clearly differ from the total and absolute rest. Hence the beginning of the implementation of the agent will commit a particular crime, in this case giving the death of another person.
b.1. THE error.
, Number 24, June 1999, page 16, for Hugo Lopez Carribero).
is why the investigation of a fact presented for establishing, prima facie, the crime of attempted murder will be vital, for clarification, ballistic tests, sketches illustrating the location, history
the case, and also the mistakes that have incurred the accused at the time of the event.
B. The beginning of the attempt.
often not well defined the point at which the subject begins to kill, and even plan their concrete act. As a result make it difficult to know the moment when the attempt is born. It is therefore necessary to examine carefully the existence of circumstances beyond the control of the agent who had influence in the consummation of the offense. Both the fraud
as circumstances are indispensable presence of others, if you have a homicide tempted. Otherwise there can be attempted.
We said already that we are not the place to try to deepen the theme of the attempt as a legal institution, at least to the extent that it requires. However, the situation in relation to the crime of murder can be summarized as follows: "if the procedural records
comes perfectly clear that the subject developed the corresponding intent of wanting to kill another person, beginning the implementation of instruments aimed at achieving its goal, being that it was not just because of circumstances beyond their control, we face a homicide is attempted. "
not enough has been used in fact a firearm or a sharp knife, then the fraud can be deployed by the agent, it is clear that we have tried to consummate an abuse of weapons or injury that would not cause the death of the person injured, or the best that has been a voluntary dismissal. Carnelutti
the words of "The attempt is the average between rest and movement."
is such that in the attempted offense is easily seen that there is a special relevance in the theory of crime while moving teda embryonic characteristics clearly differ from the total and absolute rest. Hence the beginning of the implementation of the agent will commit a particular crime, in this case giving the death of another person.
b.1. THE error.
Traditionally, criminal law has discussed the existence of so-called type error. The crime of murder was used as an example, particularly when it is attempted is.
The type error would be to the case where a person tried to kill an animal and not consiguiere by circumstances beyond their control, but it happens that the scene takes place at night, with heavy rain and poor visibility, and the assumption animal turns out to be a person who happened to walk by the place when it was passing there frequently.
We are therefore faced with a clear example of type error, that being invincible disclaims responsibility to the agent. But this should not be different from the completed crime because in either case imposing the rule of Article 34 of the Criminal Code states as a lack of accountability for those who have not been made at the time to understand the criminality of the act by mistake or ignorance of fact is not attributable.
In the case of the example is invincible error is given in climatic conditions and also that the agent is very familiar with the terrain on which fires his gun and know it is not unusual for a person walking by.
In another case, a subject understands that stabbing a person found asleep under the covers to kill him, when in reality all they are doing is harming a solid knife pillow. This is an example of an attempt impossible or putative crime falls in the last paragraph of Article 42 of the Criminal Code. B.2
punitive scale.
We now focus on the punitive scale current legislation authorizes the imposition in the case of the attempted offense in principle when it comes to simple murder. In this regard Article 44 of the Penal Code stipulates in its first paragraph: "The penalty would correspond to the agent if he had consummated the crime, a decrease third to one half. "
What is the correct interpretation must be accorded this legal provision? To refer the issue as an example take punitive scale prescribed for the offense of manslaughter punishable under Article 79 of the Criminal Code, ie ranging 96 to 300 months imprisonment or imprisonment (time expressed in months or years because no an educational issue, the reader will interpret).
The example most of the doctrine and jurisprudence means that the sentence is attempted should be between 48 and 200 months of confinement, ie the maximum penalty is reduced by a third and a half minimum.
must be taken into account l that the Board of the National Chamber of Criminal Appeal has spoken in favor of the usual criterion expressed as follows: "In the case of Article 44, the reduction of penalty attempt should be decreasing by one third the maximum, and in the middle of the penalty for the completed crime "(21/09/1994. Jurisprudencia Argentina, 1995, p. 456). Sebastian Soler
questioned claims that the punitive reduction in the attempt to apply on the basis of the penalty that would have corresponded to the subject, should have seen the consummation crime.
So much for the affirmation of the important doctrinal disagreement seems to have some of the positions before detailed. But the situation becomes appealing to the legal interest when Soler himself to know the mechanism that should be done to decrease.
states that in case of outbreak, the court must set up a hypothetical procedure includes the determination in the abstract of the sentence for the case where the agent had consummated the act. Thus the scale punitive attempt would fall between a third and half of the hypothetical penalty. In the example of voluntary manslaughter, the judge would render the hypothetical penalty for the offense, as it could be eight years in prison (ie 96 months), so the penalty for the offense level tempted would be covered with a minimum of 48 months (or half) and 64 months maximum (ie two thirds). However
to our view there is sufficient or valid reason to remove it is done this way. Indeed, what makes you think that fact to the legal letter, to the maximum, subtract at least one third and half, and not vice versa? Why not play that when Article 44 states: "... shall be reduced by one third to one half," he is referring first to the minimum and maximum after the crime already consummated? You say that we should subtract a third to half the minimum and maximum. The latter pose
we do it bearing in mind that the Criminal Code of the characterizations market referred first to the minimum sentence and then to the maximum (for example, manslaughter 8 to 25 years, scams a month of 6 years, reduced servitude from 3 to 15 years).
So, seeing the least law first and then the maximum, in the example of manslaughter would be attempted on a scale that range from a minimum of 64 up to 150 months imprisonment or detention.
In this situation one can see that the band that sets the minimum sentence from 48 months would, in the traditional doctrine, to 64 months in the opinion We argue that, while in relation to the maximum penalty the difference ranges from 200 months in the first position to 150 months in the second.
In comparison to the traditional view that states reduce by half the minimum and maximum one-third decrease when the reverse is the end result is greater than the minimum lower maximum.
understand that the law is peaceful and even in the sense of reducing the penalty pear crimes, making half the minimum and maximum of one third, in some cases it can release people charged for crimes that are commonly heard in ordinary criminal courts of the Federal Capital. Example de los excarcelables en esa jurisdicción son, algunas veces, el robo con armas y la extorsión ambos en grado de tentativa, pues como sabemos las mismas situaciones no permite la excarcelaciones, al menos en forma ordinaria, cuando los delitos han sido prima facie consumados. Distinta es la situación en la Provincia de Buenos Aires, pues allí la ley 12.405 modificó el Código Procesal Penal e impuso algunas circunstancias legales que impiden las excarcelaciones antes mencionadas. Este tema pertenece a un objeto diferente al de éste trabajo, pero en relación a la ley provincial 12.405 queremos referirnos muy brevemente
diciendo que su sanción legislativa ha llevado al tremendo absurdo, en algunos casos, de tener detenida una person when it is still presumed innocent, that is, before a conviction, and give you the freedom when found guilty by applying a suspended sentence. A classic example is the simple theft is attempted when I've been violence in people. Moreover, in this case has reached the tremente arbitrariness, in most cases, to maintain custody longer than the minimum of the crime under investigation.
For our part, expressly adhere to the theory of the eminent essayist Ricardo Núñez, who argues that the punitive scale, in the crimes tempted, should be between at least two-thirds and half of the maximum, taking into account criminal graduation this statutory background for the type of crime.
Of course, paying attention to the issue warrants in relation to the liberty of the accused considerable size comes the issue as depending on the interpretative approach is taken there may be homicide by probation favored over others. Taking the example
manslaughter is attempted and the application of the maximum sentence, 25 years or 300 months, for the majority doctrine higher penalty will be 200 months and for the position we hold is 150 months. In the first case of probation may extend to 133 months, while the second event will take place to 100 months.
Holding the same line of thought, even from another point of view and since the attempted establishment of a fixed penalty for a period of imprisonment or detention, the right and must always be due to decreased half maximum, as the spirit the rule of law is precisely that the maximum pan never attempted more than half that set for the case of the consummation illegal.
The small contribution that we aim to provide the reader with respect to the issue is that we, or rather we are convinced that the wording of the criminal code does nothing to help the proper administration of justice because it creates the worst situation that can exist in the field Law: "The legal uncertainty." Without having to argue about the validity of the arguments we have outlined, we see that Article 44 of the substantive law establishes a scale abstract honeycomb that is in conflict with the constitutional guarantees healthy, especially the legal principle of pre-made law due process and criminal criminality.
From our position, stated in brief, we find an echo in the legislative work to hereinafter for a profound modification of the Penal Code for the purpose of providing the necessary legal certainty, the same as the Constitution protects.
The issue of punitive scale of homicide degree and attempted relevance and interest when the crime under investigation is not the aggravated under Article 80 of the Criminal Code.
This is so whenever the attempt to Article 80, the penalty will range between 15 and 20, and 10 to 15 years in the first and the second case as imprisonment or detention. This is true, but not doctrinaire interpretation that the law so as to in Article 44 at 2nd and 3rd paragraphs.
b.3. Imprisonment or detention.
Article 80 of the Penal Code authorizes the court to apply prison sentences or who kills another in one or more of the circumstances detailed in clauses.
For its part, Article 13 of the same Code establishes the institution of probation, sentenced to prison or jail time of three or more years can be benefited from the temporary ease once you are served two-thirds of the penalty. From since the computation of two-thirds of the sentence should take into account the time that the offender had been in preventive detention. Well here is a fundamental difference in the election of the judge when sentencing
a case of murder is attempted, as have prison sentence should be counted only half the pre-trial detention for the purposes of calculating the penalty and a future parole. This is motivated by the wording of Article 24 of the Criminal Code when it states: "The detention is computed as follows: for two days of pretrial detention, a prison, for a day of detention, a prison."
Regarding the constitutionality of Article 24 of the Criminal Code the reader may consult "The partial fulfillment of the sentence on recidivism." Journal of the Bar Association of the Federal Capital, number 15, August 1998, page 14. Carribero
By Hugo Lopez.
The reasoning above is extensive criminal participation in the secondary field and that Article 46 of the Penal Code provides in this respect that: "Those who cooperate in any other way to the execution of the act and providing subsequent aid to fulfilling earlier promises it will be punished with the punishment for the crime, diminished by one third to one half. "
The article refers to those members who provide, lead author of the crime, a help which is necessary for the consummation of the crime, but it helps or makes things easier.
b.4. Serious injury.
may happen that this is a confusion in serious injury cases defined in article 91 of the Criminal Code.
For in that case it is necessary to have recourse, as often, the psychology of the author.
If wanted wanted to kill or seriously injure. It will also be of fundamental importance to the place of events, there will be if he got what he wanted or if instead
The type error would be to the case where a person tried to kill an animal and not consiguiere by circumstances beyond their control, but it happens that the scene takes place at night, with heavy rain and poor visibility, and the assumption animal turns out to be a person who happened to walk by the place when it was passing there frequently.
We are therefore faced with a clear example of type error, that being invincible disclaims responsibility to the agent. But this should not be different from the completed crime because in either case imposing the rule of Article 34 of the Criminal Code states as a lack of accountability for those who have not been made at the time to understand the criminality of the act by mistake or ignorance of fact is not attributable.
In the case of the example is invincible error is given in climatic conditions and also that the agent is very familiar with the terrain on which fires his gun and know it is not unusual for a person walking by.
In another case, a subject understands that stabbing a person found asleep under the covers to kill him, when in reality all they are doing is harming a solid knife pillow. This is an example of an attempt impossible or putative crime falls in the last paragraph of Article 42 of the Criminal Code. B.2
punitive scale.
We now focus on the punitive scale current legislation authorizes the imposition in the case of the attempted offense in principle when it comes to simple murder. In this regard Article 44 of the Penal Code stipulates in its first paragraph: "The penalty would correspond to the agent if he had consummated the crime, a decrease third to one half. "
What is the correct interpretation must be accorded this legal provision? To refer the issue as an example take punitive scale prescribed for the offense of manslaughter punishable under Article 79 of the Criminal Code, ie ranging 96 to 300 months imprisonment or imprisonment (time expressed in months or years because no an educational issue, the reader will interpret).
The example most of the doctrine and jurisprudence means that the sentence is attempted should be between 48 and 200 months of confinement, ie the maximum penalty is reduced by a third and a half minimum.
must be taken into account l that the Board of the National Chamber of Criminal Appeal has spoken in favor of the usual criterion expressed as follows: "In the case of Article 44, the reduction of penalty attempt should be decreasing by one third the maximum, and in the middle of the penalty for the completed crime "(21/09/1994. Jurisprudencia Argentina, 1995, p. 456). Sebastian Soler
questioned claims that the punitive reduction in the attempt to apply on the basis of the penalty that would have corresponded to the subject, should have seen the consummation crime.
So much for the affirmation of the important doctrinal disagreement seems to have some of the positions before detailed. But the situation becomes appealing to the legal interest when Soler himself to know the mechanism that should be done to decrease.
states that in case of outbreak, the court must set up a hypothetical procedure includes the determination in the abstract of the sentence for the case where the agent had consummated the act. Thus the scale punitive attempt would fall between a third and half of the hypothetical penalty. In the example of voluntary manslaughter, the judge would render the hypothetical penalty for the offense, as it could be eight years in prison (ie 96 months), so the penalty for the offense level tempted would be covered with a minimum of 48 months (or half) and 64 months maximum (ie two thirds). However
to our view there is sufficient or valid reason to remove it is done this way. Indeed, what makes you think that fact to the legal letter, to the maximum, subtract at least one third and half, and not vice versa? Why not play that when Article 44 states: "... shall be reduced by one third to one half," he is referring first to the minimum and maximum after the crime already consummated? You say that we should subtract a third to half the minimum and maximum. The latter pose
we do it bearing in mind that the Criminal Code of the characterizations market referred first to the minimum sentence and then to the maximum (for example, manslaughter 8 to 25 years, scams a month of 6 years, reduced servitude from 3 to 15 years).
So, seeing the least law first and then the maximum, in the example of manslaughter would be attempted on a scale that range from a minimum of 64 up to 150 months imprisonment or detention.
In this situation one can see that the band that sets the minimum sentence from 48 months would, in the traditional doctrine, to 64 months in the opinion We argue that, while in relation to the maximum penalty the difference ranges from 200 months in the first position to 150 months in the second.
In comparison to the traditional view that states reduce by half the minimum and maximum one-third decrease when the reverse is the end result is greater than the minimum lower maximum.
understand that the law is peaceful and even in the sense of reducing the penalty pear crimes, making half the minimum and maximum of one third, in some cases it can release people charged for crimes that are commonly heard in ordinary criminal courts of the Federal Capital. Example de los excarcelables en esa jurisdicción son, algunas veces, el robo con armas y la extorsión ambos en grado de tentativa, pues como sabemos las mismas situaciones no permite la excarcelaciones, al menos en forma ordinaria, cuando los delitos han sido prima facie consumados. Distinta es la situación en la Provincia de Buenos Aires, pues allí la ley 12.405 modificó el Código Procesal Penal e impuso algunas circunstancias legales que impiden las excarcelaciones antes mencionadas. Este tema pertenece a un objeto diferente al de éste trabajo, pero en relación a la ley provincial 12.405 queremos referirnos muy brevemente
diciendo que su sanción legislativa ha llevado al tremendo absurdo, en algunos casos, de tener detenida una person when it is still presumed innocent, that is, before a conviction, and give you the freedom when found guilty by applying a suspended sentence. A classic example is the simple theft is attempted when I've been violence in people. Moreover, in this case has reached the tremente arbitrariness, in most cases, to maintain custody longer than the minimum of the crime under investigation.
For our part, expressly adhere to the theory of the eminent essayist Ricardo Núñez, who argues that the punitive scale, in the crimes tempted, should be between at least two-thirds and half of the maximum, taking into account criminal graduation this statutory background for the type of crime.
Of course, paying attention to the issue warrants in relation to the liberty of the accused considerable size comes the issue as depending on the interpretative approach is taken there may be homicide by probation favored over others. Taking the example
manslaughter is attempted and the application of the maximum sentence, 25 years or 300 months, for the majority doctrine higher penalty will be 200 months and for the position we hold is 150 months. In the first case of probation may extend to 133 months, while the second event will take place to 100 months.
Holding the same line of thought, even from another point of view and since the attempted establishment of a fixed penalty for a period of imprisonment or detention, the right and must always be due to decreased half maximum, as the spirit the rule of law is precisely that the maximum pan never attempted more than half that set for the case of the consummation illegal.
The small contribution that we aim to provide the reader with respect to the issue is that we, or rather we are convinced that the wording of the criminal code does nothing to help the proper administration of justice because it creates the worst situation that can exist in the field Law: "The legal uncertainty." Without having to argue about the validity of the arguments we have outlined, we see that Article 44 of the substantive law establishes a scale abstract honeycomb that is in conflict with the constitutional guarantees healthy, especially the legal principle of pre-made law due process and criminal criminality.
From our position, stated in brief, we find an echo in the legislative work to hereinafter for a profound modification of the Penal Code for the purpose of providing the necessary legal certainty, the same as the Constitution protects.
The issue of punitive scale of homicide degree and attempted relevance and interest when the crime under investigation is not the aggravated under Article 80 of the Criminal Code.
This is so whenever the attempt to Article 80, the penalty will range between 15 and 20, and 10 to 15 years in the first and the second case as imprisonment or detention. This is true, but not doctrinaire interpretation that the law so as to in Article 44 at 2nd and 3rd paragraphs.
b.3. Imprisonment or detention.
Article 80 of the Penal Code authorizes the court to apply prison sentences or who kills another in one or more of the circumstances detailed in clauses.
For its part, Article 13 of the same Code establishes the institution of probation, sentenced to prison or jail time of three or more years can be benefited from the temporary ease once you are served two-thirds of the penalty. From since the computation of two-thirds of the sentence should take into account the time that the offender had been in preventive detention. Well here is a fundamental difference in the election of the judge when sentencing
a case of murder is attempted, as have prison sentence should be counted only half the pre-trial detention for the purposes of calculating the penalty and a future parole. This is motivated by the wording of Article 24 of the Criminal Code when it states: "The detention is computed as follows: for two days of pretrial detention, a prison, for a day of detention, a prison."
Regarding the constitutionality of Article 24 of the Criminal Code the reader may consult "The partial fulfillment of the sentence on recidivism." Journal of the Bar Association of the Federal Capital, number 15, August 1998, page 14. Carribero
By Hugo Lopez.
The reasoning above is extensive criminal participation in the secondary field and that Article 46 of the Penal Code provides in this respect that: "Those who cooperate in any other way to the execution of the act and providing subsequent aid to fulfilling earlier promises it will be punished with the punishment for the crime, diminished by one third to one half. "
The article refers to those members who provide, lead author of the crime, a help which is necessary for the consummation of the crime, but it helps or makes things easier.
b.4. Serious injury.
may happen that this is a confusion in serious injury cases defined in article 91 of the Criminal Code.
For in that case it is necessary to have recourse, as often, the psychology of the author.
If wanted wanted to kill or seriously injure. It will also be of fundamental importance to the place of events, there will be if he got what he wanted or if instead
* (Fuente. lopezcarribero@lopezcarribero.com.ar)
Crimes against sexual integrity
Contents: Introduction. The new law 25,087. The current name - Disparate opinions. The legally protected interest. Outrageous sexual abuse seriously. Elements constituting the crime. Parliamentary discussion. Fellatio in ore. Discussion - Review of different authors. "Fellatio in ore" Rape or sexual abuse? Opposition to this position. Discussion jurisprudence. Some Considerations - Conclusions. INTRODUCTION
.
The new title by the Reform (Amendment of Book II, Title III of the Criminal Code) published on 14 May 1999 aims to settle the dispute occurs on the protected legal interest in this type of crime.
is untenable the claim that these crimes guarding the "sexual honesty", this assertion has not accepted any doctrinal or jurisprudential. While the legislative decision to change the heading was an assertion of transcendental importance remains to be seen whether in practice this tool is effective in achieving the objective.
The new law 25,087. Replaced
not only the heading of Title setting its current name as "crimes against sexual integrity", but repealed the provisions of Chapters II to V of Title III of Book II of the code violation and rape, corruption, indecent assault, indecent assault and abduction, which were not replaced by other shall be part of "abuse."
Creates new crimes as "sexual abuse" that emerges from the description of the typical action contained in the new criminal art.119 modifying the Penal Code, replacing it with rules which are extracted from the current figure of sexual abuse.
The present name. Disparate views.
The entry imposed by the reform is closer to the concept that different authors proposed in this regard. Carrara [1] speaks of crimes that offend the "individual pudicia" Nunez [2] the idea of \u200b\u200bprotecting "sexual subject" as Fontan Balestra [3] understood it must guard against the "sexual desire." Moras
Mon [4] supports the concept of crimes against "sexual freedom" that today offer the most advanced legislation in the world, including the Penal Code of Spain, the German code which refers to "crimes against sexual self-determination" or the Portuguese that is more broadly about sexual crimes. As Creus argues that sexual freedom is violated by unlawfully attacked autodecisión field of the person, conscious and freely which has the ability to resolve who will or not supported in your intimate space. In the same sense
pronounce Fontan Balestra [5] to describe the protected legal interest in the crime of rape, stating that apply to sexual abuse with sexual intercourse, when it states that rape is a crime against the sexual desire for both is legally injured individual freedom as everyone has the right to choose the object of their sexual activity.
understand that the attack on sexual freedom does not seem inconceivable without the previous lesion of modesty, but the violation does not exist unless it has an effect on the sexual freedom because no sexual intercourse take place may settle for another crime but no violation.
The location and conceptualization of aggression and abuse that affect the integrity and the independent exercise of sexuality of people as sex offenses goes back into the past, which referred to the tarnished honor of women affected by such sexual behavior who were doubly victimized because they were both the offender and for society but this trial was alluding primarily to the honor and good name of those who were its owners, or guardians.
the legally protected.
The change proposed by the new law is a significant contribution to the idea the legally protected interest. This set of behaviors that are incriminating acts of aggression and violence that threaten the physical, mental and moral development of women. Involve not exercise self-determination, not as free to choose their sexuality or their own body, leading to degradation of a being that is considered inferior, and therefore to treat these crimes as attacks on the honesty not women are valued as the person but as if it were a case of sexual impropriety or were owned by some men.
The legislative amendment to adequately address sexual violence as an insult to the integrity of the victim, understanding that such crimes involve a restriction on the freedom of choice for women and not an affront to the status or honor the man. It is not just the fact that the act of violation directly restrict individual freedom of movement of the victim but, given the frequency with which violations occur threat grows from being a victim and as this is not a number accidental events are institutionalized individual but ends up becoming a socially coercive practice.
has been defined as conduct detrimental to the act of sexually abusing a person, regardless of gender of the taxpayer, when he is under age thirteen or "Act of intimidation alters violence, threats, coercive or threatening abuse of a relationship of dependency, authority or power or taking advantage of the victim for whatever reason was unable to freely consent to the action." This is to maintain the figure of known sexual abuse but not dishonest, which incorporates the form of coercive or threatening abuse of a relationship of dependency, authority or power to qualify the fact and the existence of other causes that have prevented the free consent of the action.
We have studied the quality of force, intimidation or resistance to lead predominantly to free consent, as to whether the fact was committed this concept plays a fundamental role. The doctrine and jurisprudence debated whether the victim had resisted the attack or whether his will was overcome by the use of force or threat of physical harm, if the resistance offered to the aggression was really relentless.
is incorporated as a basic figure aggravated sexual abuse to "seriously outrageous sexual submission to the victim" which includes cases where the abuse is prolonged in time or place in circumstances that lead to set up this situation, trying to include acts that are more damaging to a woman. The idea is that this series of behaviors are considered and aggravated sexual abuse, for the duration and the circumstances in which it occurs, as in the case of situations of grave insult not amounting to penetration, as the "cunnin lingus" or the use, not the male sexual organ but any substitute another item.
In turn, the law keeps pointing out that this figure may be by any route, which both the victim and the perpetrator may be of either sex as the gravity of the offense should not be linked to the gender of the victim, adopting a broader conception of action that can incriminate as abuse (rape) to any type of penetration, including the "fellatio in ore" and anal penetration. On the first we will expand later in chapter.
SERIOUS SEXUAL ABUSE outrageous.
Elements that constitute the offense.
aggravation of sexual abuse the new law include those who: a) shall cause serious damage to physical or mental health of the victim, b) are committed by an ascendant, descendant, related in a straight line, brother, guardian, conservator minister of any religion recognized or not, responsible for the education or care; c) the author has knowledge of being a carrier of a serious sexually transmitted disease, and has been no danger of contagion; d) the act is committed by two or more persons, or weapons; e) the act is committed by personnel from the police or security forces in the line of duty; f) the act is committed against a child under eighteen years, building on the existing situation of living with it.
So the 2nd. paragraph of art. CP 119 punishable by imprisonment or imprisonment of 4 to 10 years "when the abuse by its duration or circumstances of the making, has set up a seriously outrageous sexual submission to the victim."
It can be seen in the typical description of this conduct special mention the humiliation suffered by the victim as the surrender, not fleeting or sporadic act that involves adding suffer greater offense to the fact itself is an obvious lack of courtesy to the human condition.
This aggravation is based on the largest breach to the victim's sexual freedom that supports a submission characterized by its duration (time element), or the circumstances surrounding it (factual element), as might be the introduction of certain elements vaginal, anal or oral. Have also been established
the subjects of this aggravating factor. Active subject can only be a man, as he and not a woman can own penetration of intercourse, although a woman may acting as an accomplice or abettor, while taxable person may be both man and woman, both of which can be accessed by a man carnally.
doctrinally is discarded the possibility of reverse rape, or if the woman is the author of the crime because only the man's physical condition who can make a sexual penetration. They are considered fit to form the figure of the penis artificial substitutes or hypertrophic formations notwithstanding that such behaviors are trapped in the crime of "dishonesty."
By not talking and honesty of the victim, as the legally protected right is freedom sexual, it should be the possibility that a prostitute may be a taxable person of this crime.
As for the possibility of marital rape does not exist under conjugal, but it is when it comes to sexual intercourse or unnatural when the resistance is based on the purpose of avoiding a sexually transmitted disease, violation would also except upon divorce or temporary separation. Meanwhile
English law in Article 179 of the Penal Code decisively clarifies the issue in stating that "when the sexual assault consists of sexual intercourse, insertion of objects or oral or anal penetration, punishment shall be imprisonment from six to twelve years. " Is specific about the configuration of sexual intercourse and separated into its standard the introduction of objects as well as oral or anal penetration. English law does not allow doctrinal discussion about it, oral penetration but not intercourse shall be punished with the same penalty dosimetry.
As background, we can cite the rationalist theory [6] reduced the sexual violation to the simple moral consequence resulting from the action of the active subject and in order to approximate it, not to mediate or even a serious attempt intercourse only was to reduce the subject's freedom Contact person for opposing or approximation of the sexual organs. Had its acceptance in our legal history, the project of Dr. Weaver, depending on who committed the crime of rape, when using physical violence or threats of imminent or actual danger to life or body, is obliged to a woman to suffer sexual approach against their will. Rape - said in the note to article - "against the person involves a double attack on their physical and moral integrity. These two kinds of attack can cause the victim to more serious damage and jeopardize the happiness of all existence "[7]. The draft doctors Villegas, Ugarriza and Garcia reproduced in two arts. -269 And 270 - the terms used by Weaver. The Penal Code of 1886 merged the two articles that were on previous projects into one, but kept the terms "sexual approach." In the 1891 draft, the violation is punishable, without naming the crime-is to have concúbito out of wedlock with a person of either sex. Finally, we see that the draft of 1906 (later signed into law) was established for the crime of rape the current terminology of "sexual intercourse."
The design called materialistic, that is exceeding the mere contact of sexual organs or approximation thereof, and requires penetration occurs in them, regardless of the degree of perfection of this was the most accepted. The need for such sexual penetration caused by the offender in respect of the person who suffers, is what led to the project from 1891 to change the formula then in effect by having concúbito (Article 146) under that it would be eradicated by completely the possibility of a violation without any real concúbito or at least, there would be doubts about the time consumed [8]. The nomenclature of 1891 is then reflected in positive law in 1906 by the 4189 reform law.
both legal theory and in the mixed pure penetration is essential, but need not be complete or perfect the act and this has been almost uniformly accepted jurisprudence [9]. Discussion
parliament.
In the parliamentary debate of the 25,087 law in the Senate of the Nation, Sen. Yoma to ask whether any criminal offense fell within certain objects penetration noted that "sexual intercourse is understood as the penile penetration, which would be out of this concept, the penetration of objects or anything else other than the penis in any cavity, whether oral, anal or vaginal sex. " This question was answered by the Senate President, Dr. Carlos Ruckauf, noting that "the issue being raised is a central issue, although the figure would not be issued in the third paragraph of 119, where a penalty of 6 to 15 years, it would fall in the second paragraph fixing a term of 4 to 10 years, it would involve sexual abuse with any object. "
After the intervention of Dr. Ruckauf, again took the floor to Senator Yoma, who seeking to reflect the interpretation of the law said "let argued that the legislature wanted to refer to penetration with any object, for sexual and in any cavity. This is the sense that we are taking to reform at this time who advised the project "(verbatim interim meeting of the CSN of 14/04/1999).
" Thus, applying such guidelines, the introduction of a finger in the ear, if is made for sexual purposes, would involve the commission of the crime of rape. "This conclusion was arrived Genoud Senator in the debate, expressing that it is possible to switch to other reasonable criteria rather than on the criminal offense under discussion.
note with disgust the show dissent on the issue among legislators and that if the intention was to punish and rape the introduction of any object in any body cavity, the wording of the rule does not seem to catch this behavior. Fellatio
IN ORE.
The issue to be clarified is the legal classification corresponds to agree when there is the "fellatio in ore". If the mouth is the person's private parts and touching rather than voluntary, not freely consented to being a objectively indecent act, whatever the intention of the author. That is, if this behavior is part of rape or sexual abuse and what is the correct legal adequacy in Article 119, an issue not clearly resolved in this article.
Discussion - Reviewed by different authors.
Having conducted a survey of doctrinal backgrounds who were interested in the issue will list the different legal opinion on the matter. NUÑEZ
[10] says: (...) "Before the reform, 'the man carnally access to the other person when you enter, even partially, without ejaculating, her sexual organ in the body of the victim, is according to nature, for vaginally; is against nature, rectally. The introduction by mouth (fellatio in ore) does not constitute sexual intercourse within the meaning of art. 119, but violent or fraudulently made, is a sexual abuse, then laid down in Art. 127 of the CP and punished with imprisonment from six months to four years. Mouth to the anus difference, no developments and projecting glands erogenous, and so in contact with the male organ, sexual function fails similar to the vagina. " The same author [11] disputed an argument by pointing out that the reference to Article 119 of the background code, as above, receptive sodomy under Art. 129 of the Penal Code of 1886 which consisted of coitus in ore, citing the appointment Weaver makes in its course (Part I), number 31, paragraph 3, of the Bull of Pius IV, 1568, which is not adjusted to as source "Weaver has not adopted the concept of sodomy of this bull, which merely cites as information, but the concept of games [12], ie as an act of sexual investment. Under the headings: "sodomite sin in which they say fall yaziendo omes with each other, unnatural and natural custom." Neither this document nor the gloss of Gregory Lopez, who also cites Weaver, refer to penetration by mouth, to whose words the author uses a different source than the one accepted by him in the text, such as the Bull of Pius IV. Otherwise the art. 129 of the Code of 1886, as well as English law, speaks of sodomy as the "man concúbito con hombre”. De tal manera si bien se puede decir que, al admitir el acceso carnal entre individuos del mismo sexo, el artículo 119 comprende la sodomía como cópula pederástica del art. 129 del Código de 1886, no se puede ampliar la información y decir que el código vigente, por haber admitido la sodomía del viejo código, comprende en la violación la “fellatio in ore”.
La interpretación restrictiva que reduce la violación al acceso vaginal y rectal y excluye la penetración por boca parece tener una razón científica. Si bien el ano no es el órgano destinado por la naturaleza para ser el vaso receptor de la penetración copular natural por poseer lo mismo que la vagina, glándulas de evolución y proyección erógenas, en su contacto con el órgano masculino cumple, antinaturalmente, una función semejante a la que realiza la vagina. Esto no ocurre con la boca, la cual, careciendo de ese tipo de glándulas, no resulta apta como elemento constitutivo del concúbito, aunque por resortes psicológicos y mecánicos sirva para el desfogue libidinoso del actor y del paciente. La boca, como los senos o cualquier otra parte del ser humano que no sea la vagina o el ano, resulta así incapaz de generar un coito, aunque sea anormal. Su uso violento o fraudulento no puede, por consiguiente, implicar un coito violento o abusivamente logrado. Su utilización sexual violenta o abusiva sólo significa sexual abuse of a foreign body (CP, art. 127). "
For its part, GRAVIER [13] did not understand the "fellatio in ore" in the concept intercourse, citing Creus [14], Pandolfi [15] and Achaval [16], considered "that the mouth is not suitable recipient vessel for the completion of intercourse (...) accept that the mouth is what can be also imply that the nostrils or ears, which are also the person's natural orifices or open wounds on the body of the person and in certain cases may be susceptible to partial penetration. "
takes into account the jurisprudence of various courts and Achaval [17] who says: "If we continue changing the concept of sexual intercourse, according to the opinions, attitudes and prejudices, we shall absorb the crime of sexual abuse and corruption in the increasingly broad set of rape and this will have also to be discussed whether or not possible violation of women (rape versa). "
adds that the English Code of 1995, although subjected to the same penalty, a distinction between the concept of sexual intercourse and anal or oral penetration, referring to:" when the aggression sexual abuse or sexual intercourse is to, introduction of objects or anal penetration or oral (...)", with what amounts to raise that to those standards the last two concepts are not included in the first [18]. The same happens in Italian criminal law which considers the "fellatio in ore" a form of masturbation by mouth others, not constituting rape and other lewd acts other than carnal union [19]. The same applies in the Criminal Law of Brazil in which the rape of art. 213 is equivalent to our rape, which is typical action sexual conjunction, which is the same as intercourse, not including the "fellatio in ore", although such conduct is caught in the following article (214) punished with a penalty slightly lower [20].
"DONNA [21] citing CARMONA SALGADO [22] says that in Spain "stated that" fellatio "should not incorporate the crime of rape, since no criteria in the strict sense of sexual intercourse and penetration only improperly, because the mouth is not a body this nature, although it may operate as a surrogate for it. It is rather a form of masturbation, as well as the so-called sex "inter femoral" is part of Article 430, in accordance with the Italian doctrine, "and adds," that German law directly speaks of intercourse, which directly exclude that concept. Since the enactment of Law 25,087 and must be understood the concept carnal access, taking into account both the text and purpose of the law. While the code maintains the expression 'sexual intercourse', which as seen has a long tradition in our projects, and a sense of what the term means, there is no alternative but to argue that the introduction of the male body vaginal or anal sex, not entering, consequently, orally or call fellatio, even though the legislature has invented this reform to solve this problem, adding 'any way', because, taken slightly expand the expression kind so huge. So if they wanted to fix or solve doctrinal dispute which analyzes (...) should add to the text, instead of 'any way', an exhaustive list of their intentions. "
This position takes PANDOLFI [23], who after citing the background, even the Bible mentioned above, concludes that "The attempt to include the" fellatio in ore "in the meaning of sodomy does not withstand careful analysis, and is only anchor the superfluous reference Weaver. Not even in the vocabulary of canon law today, it is accepted that extended meaning of the word sodomy, as evidenced by the appointment itself CHIAPINI. This is a fornication "onanística unnatural" [24]. And masturbation is a solitary vice, it is clear that this is not an activity cum altro, as by definition a sexual intercourse. Exegetical-dogmatic analysis arises because in our view clearly, that "fellatio in ore" is not carnal, and therefore if it is imposed against or without the will of the taxpayer, the criminal is affected the old art. 127 and not the 119. That is why after the reform, will find accommodation in paragraph 2 of Article 119 and not the third (...). It is appreciated then that the oral intercourse, and oral rape accordingly, not only does not exist in current criminal law exegetical grounds, but also implications a linguistic, anatomical, physiological, psychological, among others. " CREUS
not preclude the "fellatio in ore" currently constitutes a possible form of violation. Commenting about 25,087 law said: "While our doctrine the concept of sexual intercourse is not as restricted as in other (...) extending the penetration of the male penis from any orifice of the body of the victim as magazine a 'content' carnal sexual contact in the average education of society, some people persist in refusing to qualify as sexual intercourse to oral sex, despite the phrase 'by any means' however, that the inclusion of these cases was one reason that the legislator raised the desire for reform [25].
The law reform made by 25,087 positions were expressed regarding doctrinal and jurisprudential dissimilar situations. One of them came to the now clear that sexual abuse with sexual intercourse, it is rape, where penetration is by any means.
One of the record that the legislature had in mind to dispel the doubts about whether the "fellatio in ore" was rape or sexual abuse was the ruling by the National Appeals Chamber III in the case "Bronsztein, Daniel Henry s / rec . of appeal "-reg. 501/98 of 19/11/98- [26] where it was held that: "The crime of rape who penetrates her male sex organ in the mouth of a person of either sex, upon the use of force or intimidation" [ 27].
In accordance with that ruling in the case "Ifran, Carlos Alberto s / rec. of appeal "of 28.08.2002 and" Ramirez, Sergio M. s / rec. of appeal "of 04.02.2004 confirmed the same room that conduct falls within the expected figure and repressed by the art. 119, third paragraph, clause "b" of the Penal Code, every time, which as it emerges from 25,087 law to reform the article mentioned, constitutes the offense of rape as "any sexual intercourse by any means", one of which is the penetration of the male sexual organ into the mouth of a person.
This interpretation is the one that best meets the legal criteria, scientific and historical. In our legal tradition has always been considered legal violation of both the city of man to man by rectal (sodomitical), and the coupling mouth or oral intercourse [28].
"Fellatio IN ORE" RAPE or sexual abuse?
should be considered to be rape a violent act essentially characterized by the enjoyment of a person using another against their will, the whole carnal conjunction conducted on a person of either sex that involves direct activity of the libido of the actor, who can represent the same sex or a surrogate form of it with the intervention of his genitals, which there is penetration or immission, albeit minimal, in a body orifice of the victim regardless of whether the cavity is normal or abnormal for the act, is 'sexual intercourse', and thus constitutes the offense of rape and sexual abuse not the . As such, he commits the crime of rape who enter with their male sex organ in the mouth of a person of either sex by using force or intimidation.
opposition to this position.
As mentioned NÚÑEZ refused to consider the "fellatio in ore" violent as rape. He understood that the absence of glands erogenous mouth was not suitable as a constituent of concúbito. "The mouth, like breasts or other body part other than the vagina or anus, it is thus unable to generate intercourse, even abnormal. His violent or fraudulent use can not therefore involve a violent sex or improperly managed. The use of violent or abusive sexual means only sexual abuse in the foreign body [29]. In the same vein other qualified enlisted doctrinaire as FOLIAGE ANAYA [30], Molinari [31], GOMEZ EUSEBIO [32], MAGGIORE GIUSEPPE [33], MARIO MANFREDINI [34], FRANCESCO Vallardi [35] and Achaval ALFREDO [36], and this approach also emerged in numerous pronouncements court [37].
Following the interpretation of the National Appeals Chamber III, oral sex is no different from other penetration against nature and do not care if this channel is equipped or not erogenous zones. That access to it, as a substitute for your own vagina or erotic satisfaction, regardless of the status of the person who supports it, is guilty of this crime. It supports violent carnal access "as a crime-sharing is ruled out sensual of the victim and must reject the position of the doctrine that seeks to eliminate the mouth as a hole appropriate for the commission of the conditions for lack of erogenous.
Discussion jurisprudence.
The diversity of views was also reflected in case law, which was divided into different positions as did the authors.
A failure of Superior Court of Cordoba May 31, 1948 (LL, 51-917) stated that coitus in ore falls into the crime of rape. Nine years later, the same court changed its mind hosting a contrary view. On May 7, 1957 (LL, 60-25) found that the author, having made his act by violence, falls into the rating that corresponds to sexual abuse because although the act has been to an introduction of the sexual organ in the body of the victims, that penetration has not been anally, which is the only one under art. 119 of the CP and the current conception, it generates the proper sexual intercourse between men of rape.
Fittingly, the House Criminal and Correctional Federal Capital consistently maintained the same criteria regarding the "fellatio in ore" does not set the crime of rape, but of sexual abuse [38].
For its part, the Oral Criminal Court No. 14 by 11/10/1997 Case decided by majority that "the concept of carnal knowledge of art. 119 includes any penetration of male organ into the victim's body orifice, so as to allow intercourse or an equivalent thereof, so the "fellatio in ore" constitutes the offense of rape. "
To address this behavior we conceive of "fellatio in ore" has the characteristics of so-called privileged separate offenses. Certainly contains all the elements of another crime (rape) and may be worsening crime rates that other autonomous with its own type (class) unfair. This leads me to believe, to avoid confusion, referrals typical and frequent discussion of case law, which must be legislated as a separate offense and punishable by a sentence of more than the unjust that contains it (art. 119 CP). SOME
- CONCLUSIONS.
1. All acts should be treated conceptually as serious offenses from the perspective of law, and although the path of violent and forcible penetration of it by itself, no less significant is the degradation of the victim on the effects of the injury to legal right are intended to protect.
2. The new law should have been more specific when writing the offense, as the only possible way unifying the criteria is that it expressly stated that penetration by mouth is carnal and configure the aggravation of sexual abuse sexual intercourse.
3. The 'fellatio in ore' accomplished against the will of the taxpayer is undoubtedly the crime of rape and not the sexual abuse. The typical action of illicit coined in the art. 119 of the CP is forced to have sexual intercourse accomplished. That is, it is the penetration of the male sexual organ natural cavity of the victim. Taking this as true can be said that the penetration by mouth, whether man or woman the taxpayer and real or perceived as violence for its consummation is rape, as it is violated, as in other modes of access, the right of people to agree voluntarily on sensual treatment, to determine with absolute freedom of intimate behaviors and not to be sexually assaulted your reservation.
4. The legally protected in this figure are being referred to criminal courts for the legislature provided that such crimes appear high in natural law over positive law behavior, ie the joint area. That is why the latter seem to give in order of precedence in the Criminal Code by a recognition of inferiority compared to values \u200b\u200bgreater offenses covered by the media that have a place of prominence. It is, for now, the place to turn those who represent us when legislating. I therefore think that the legislature, to establish this offense, did not consider the significance of the conduct in question. This circumstance favored the modern legal asset protection depersonalizing to motivate government intervention, thereby causing the subsequent generation of atypical problems and dosimetry of the sentence.
5. Finally, attentive to what is stated in the previous chapter to the possible atypicality of "fellatio in ore" should open the debate about whether it would be necessary to include the Penal Code as an offense and punishable with proper noun with the unjust sentence of more than containing it (art. 119 CP).
.
The new title by the Reform (Amendment of Book II, Title III of the Criminal Code) published on 14 May 1999 aims to settle the dispute occurs on the protected legal interest in this type of crime.
is untenable the claim that these crimes guarding the "sexual honesty", this assertion has not accepted any doctrinal or jurisprudential. While the legislative decision to change the heading was an assertion of transcendental importance remains to be seen whether in practice this tool is effective in achieving the objective.
The new law 25,087. Replaced
not only the heading of Title setting its current name as "crimes against sexual integrity", but repealed the provisions of Chapters II to V of Title III of Book II of the code violation and rape, corruption, indecent assault, indecent assault and abduction, which were not replaced by other shall be part of "abuse."
Creates new crimes as "sexual abuse" that emerges from the description of the typical action contained in the new criminal art.119 modifying the Penal Code, replacing it with rules which are extracted from the current figure of sexual abuse.
The present name. Disparate views.
The entry imposed by the reform is closer to the concept that different authors proposed in this regard. Carrara [1] speaks of crimes that offend the "individual pudicia" Nunez [2] the idea of \u200b\u200bprotecting "sexual subject" as Fontan Balestra [3] understood it must guard against the "sexual desire." Moras
Mon [4] supports the concept of crimes against "sexual freedom" that today offer the most advanced legislation in the world, including the Penal Code of Spain, the German code which refers to "crimes against sexual self-determination" or the Portuguese that is more broadly about sexual crimes. As Creus argues that sexual freedom is violated by unlawfully attacked autodecisión field of the person, conscious and freely which has the ability to resolve who will or not supported in your intimate space. In the same sense
pronounce Fontan Balestra [5] to describe the protected legal interest in the crime of rape, stating that apply to sexual abuse with sexual intercourse, when it states that rape is a crime against the sexual desire for both is legally injured individual freedom as everyone has the right to choose the object of their sexual activity.
understand that the attack on sexual freedom does not seem inconceivable without the previous lesion of modesty, but the violation does not exist unless it has an effect on the sexual freedom because no sexual intercourse take place may settle for another crime but no violation.
The location and conceptualization of aggression and abuse that affect the integrity and the independent exercise of sexuality of people as sex offenses goes back into the past, which referred to the tarnished honor of women affected by such sexual behavior who were doubly victimized because they were both the offender and for society but this trial was alluding primarily to the honor and good name of those who were its owners, or guardians.
the legally protected.
The change proposed by the new law is a significant contribution to the idea the legally protected interest. This set of behaviors that are incriminating acts of aggression and violence that threaten the physical, mental and moral development of women. Involve not exercise self-determination, not as free to choose their sexuality or their own body, leading to degradation of a being that is considered inferior, and therefore to treat these crimes as attacks on the honesty not women are valued as the person but as if it were a case of sexual impropriety or were owned by some men.
The legislative amendment to adequately address sexual violence as an insult to the integrity of the victim, understanding that such crimes involve a restriction on the freedom of choice for women and not an affront to the status or honor the man. It is not just the fact that the act of violation directly restrict individual freedom of movement of the victim but, given the frequency with which violations occur threat grows from being a victim and as this is not a number accidental events are institutionalized individual but ends up becoming a socially coercive practice.
has been defined as conduct detrimental to the act of sexually abusing a person, regardless of gender of the taxpayer, when he is under age thirteen or "Act of intimidation alters violence, threats, coercive or threatening abuse of a relationship of dependency, authority or power or taking advantage of the victim for whatever reason was unable to freely consent to the action." This is to maintain the figure of known sexual abuse but not dishonest, which incorporates the form of coercive or threatening abuse of a relationship of dependency, authority or power to qualify the fact and the existence of other causes that have prevented the free consent of the action.
We have studied the quality of force, intimidation or resistance to lead predominantly to free consent, as to whether the fact was committed this concept plays a fundamental role. The doctrine and jurisprudence debated whether the victim had resisted the attack or whether his will was overcome by the use of force or threat of physical harm, if the resistance offered to the aggression was really relentless.
is incorporated as a basic figure aggravated sexual abuse to "seriously outrageous sexual submission to the victim" which includes cases where the abuse is prolonged in time or place in circumstances that lead to set up this situation, trying to include acts that are more damaging to a woman. The idea is that this series of behaviors are considered and aggravated sexual abuse, for the duration and the circumstances in which it occurs, as in the case of situations of grave insult not amounting to penetration, as the "cunnin lingus" or the use, not the male sexual organ but any substitute another item.
In turn, the law keeps pointing out that this figure may be by any route, which both the victim and the perpetrator may be of either sex as the gravity of the offense should not be linked to the gender of the victim, adopting a broader conception of action that can incriminate as abuse (rape) to any type of penetration, including the "fellatio in ore" and anal penetration. On the first we will expand later in chapter.
SERIOUS SEXUAL ABUSE outrageous.
Elements that constitute the offense.
aggravation of sexual abuse the new law include those who: a) shall cause serious damage to physical or mental health of the victim, b) are committed by an ascendant, descendant, related in a straight line, brother, guardian, conservator minister of any religion recognized or not, responsible for the education or care; c) the author has knowledge of being a carrier of a serious sexually transmitted disease, and has been no danger of contagion; d) the act is committed by two or more persons, or weapons; e) the act is committed by personnel from the police or security forces in the line of duty; f) the act is committed against a child under eighteen years, building on the existing situation of living with it.
So the 2nd. paragraph of art. CP 119 punishable by imprisonment or imprisonment of 4 to 10 years "when the abuse by its duration or circumstances of the making, has set up a seriously outrageous sexual submission to the victim."
It can be seen in the typical description of this conduct special mention the humiliation suffered by the victim as the surrender, not fleeting or sporadic act that involves adding suffer greater offense to the fact itself is an obvious lack of courtesy to the human condition.
This aggravation is based on the largest breach to the victim's sexual freedom that supports a submission characterized by its duration (time element), or the circumstances surrounding it (factual element), as might be the introduction of certain elements vaginal, anal or oral. Have also been established
the subjects of this aggravating factor. Active subject can only be a man, as he and not a woman can own penetration of intercourse, although a woman may acting as an accomplice or abettor, while taxable person may be both man and woman, both of which can be accessed by a man carnally.
doctrinally is discarded the possibility of reverse rape, or if the woman is the author of the crime because only the man's physical condition who can make a sexual penetration. They are considered fit to form the figure of the penis artificial substitutes or hypertrophic formations notwithstanding that such behaviors are trapped in the crime of "dishonesty."
By not talking and honesty of the victim, as the legally protected right is freedom sexual, it should be the possibility that a prostitute may be a taxable person of this crime.
As for the possibility of marital rape does not exist under conjugal, but it is when it comes to sexual intercourse or unnatural when the resistance is based on the purpose of avoiding a sexually transmitted disease, violation would also except upon divorce or temporary separation. Meanwhile
English law in Article 179 of the Penal Code decisively clarifies the issue in stating that "when the sexual assault consists of sexual intercourse, insertion of objects or oral or anal penetration, punishment shall be imprisonment from six to twelve years. " Is specific about the configuration of sexual intercourse and separated into its standard the introduction of objects as well as oral or anal penetration. English law does not allow doctrinal discussion about it, oral penetration but not intercourse shall be punished with the same penalty dosimetry.
As background, we can cite the rationalist theory [6] reduced the sexual violation to the simple moral consequence resulting from the action of the active subject and in order to approximate it, not to mediate or even a serious attempt intercourse only was to reduce the subject's freedom Contact person for opposing or approximation of the sexual organs. Had its acceptance in our legal history, the project of Dr. Weaver, depending on who committed the crime of rape, when using physical violence or threats of imminent or actual danger to life or body, is obliged to a woman to suffer sexual approach against their will. Rape - said in the note to article - "against the person involves a double attack on their physical and moral integrity. These two kinds of attack can cause the victim to more serious damage and jeopardize the happiness of all existence "[7]. The draft doctors Villegas, Ugarriza and Garcia reproduced in two arts. -269 And 270 - the terms used by Weaver. The Penal Code of 1886 merged the two articles that were on previous projects into one, but kept the terms "sexual approach." In the 1891 draft, the violation is punishable, without naming the crime-is to have concúbito out of wedlock with a person of either sex. Finally, we see that the draft of 1906 (later signed into law) was established for the crime of rape the current terminology of "sexual intercourse."
The design called materialistic, that is exceeding the mere contact of sexual organs or approximation thereof, and requires penetration occurs in them, regardless of the degree of perfection of this was the most accepted. The need for such sexual penetration caused by the offender in respect of the person who suffers, is what led to the project from 1891 to change the formula then in effect by having concúbito (Article 146) under that it would be eradicated by completely the possibility of a violation without any real concúbito or at least, there would be doubts about the time consumed [8]. The nomenclature of 1891 is then reflected in positive law in 1906 by the 4189 reform law.
both legal theory and in the mixed pure penetration is essential, but need not be complete or perfect the act and this has been almost uniformly accepted jurisprudence [9]. Discussion
parliament.
In the parliamentary debate of the 25,087 law in the Senate of the Nation, Sen. Yoma to ask whether any criminal offense fell within certain objects penetration noted that "sexual intercourse is understood as the penile penetration, which would be out of this concept, the penetration of objects or anything else other than the penis in any cavity, whether oral, anal or vaginal sex. " This question was answered by the Senate President, Dr. Carlos Ruckauf, noting that "the issue being raised is a central issue, although the figure would not be issued in the third paragraph of 119, where a penalty of 6 to 15 years, it would fall in the second paragraph fixing a term of 4 to 10 years, it would involve sexual abuse with any object. "
After the intervention of Dr. Ruckauf, again took the floor to Senator Yoma, who seeking to reflect the interpretation of the law said "let argued that the legislature wanted to refer to penetration with any object, for sexual and in any cavity. This is the sense that we are taking to reform at this time who advised the project "(verbatim interim meeting of the CSN of 14/04/1999).
" Thus, applying such guidelines, the introduction of a finger in the ear, if is made for sexual purposes, would involve the commission of the crime of rape. "This conclusion was arrived Genoud Senator in the debate, expressing that it is possible to switch to other reasonable criteria rather than on the criminal offense under discussion.
note with disgust the show dissent on the issue among legislators and that if the intention was to punish and rape the introduction of any object in any body cavity, the wording of the rule does not seem to catch this behavior. Fellatio
IN ORE.
The issue to be clarified is the legal classification corresponds to agree when there is the "fellatio in ore". If the mouth is the person's private parts and touching rather than voluntary, not freely consented to being a objectively indecent act, whatever the intention of the author. That is, if this behavior is part of rape or sexual abuse and what is the correct legal adequacy in Article 119, an issue not clearly resolved in this article.
Discussion - Reviewed by different authors.
Having conducted a survey of doctrinal backgrounds who were interested in the issue will list the different legal opinion on the matter. NUÑEZ
[10] says: (...) "Before the reform, 'the man carnally access to the other person when you enter, even partially, without ejaculating, her sexual organ in the body of the victim, is according to nature, for vaginally; is against nature, rectally. The introduction by mouth (fellatio in ore) does not constitute sexual intercourse within the meaning of art. 119, but violent or fraudulently made, is a sexual abuse, then laid down in Art. 127 of the CP and punished with imprisonment from six months to four years. Mouth to the anus difference, no developments and projecting glands erogenous, and so in contact with the male organ, sexual function fails similar to the vagina. " The same author [11] disputed an argument by pointing out that the reference to Article 119 of the background code, as above, receptive sodomy under Art. 129 of the Penal Code of 1886 which consisted of coitus in ore, citing the appointment Weaver makes in its course (Part I), number 31, paragraph 3, of the Bull of Pius IV, 1568, which is not adjusted to as source "Weaver has not adopted the concept of sodomy of this bull, which merely cites as information, but the concept of games [12], ie as an act of sexual investment. Under the headings: "sodomite sin in which they say fall yaziendo omes with each other, unnatural and natural custom." Neither this document nor the gloss of Gregory Lopez, who also cites Weaver, refer to penetration by mouth, to whose words the author uses a different source than the one accepted by him in the text, such as the Bull of Pius IV. Otherwise the art. 129 of the Code of 1886, as well as English law, speaks of sodomy as the "man concúbito con hombre”. De tal manera si bien se puede decir que, al admitir el acceso carnal entre individuos del mismo sexo, el artículo 119 comprende la sodomía como cópula pederástica del art. 129 del Código de 1886, no se puede ampliar la información y decir que el código vigente, por haber admitido la sodomía del viejo código, comprende en la violación la “fellatio in ore”.
La interpretación restrictiva que reduce la violación al acceso vaginal y rectal y excluye la penetración por boca parece tener una razón científica. Si bien el ano no es el órgano destinado por la naturaleza para ser el vaso receptor de la penetración copular natural por poseer lo mismo que la vagina, glándulas de evolución y proyección erógenas, en su contacto con el órgano masculino cumple, antinaturalmente, una función semejante a la que realiza la vagina. Esto no ocurre con la boca, la cual, careciendo de ese tipo de glándulas, no resulta apta como elemento constitutivo del concúbito, aunque por resortes psicológicos y mecánicos sirva para el desfogue libidinoso del actor y del paciente. La boca, como los senos o cualquier otra parte del ser humano que no sea la vagina o el ano, resulta así incapaz de generar un coito, aunque sea anormal. Su uso violento o fraudulento no puede, por consiguiente, implicar un coito violento o abusivamente logrado. Su utilización sexual violenta o abusiva sólo significa sexual abuse of a foreign body (CP, art. 127). "
For its part, GRAVIER [13] did not understand the "fellatio in ore" in the concept intercourse, citing Creus [14], Pandolfi [15] and Achaval [16], considered "that the mouth is not suitable recipient vessel for the completion of intercourse (...) accept that the mouth is what can be also imply that the nostrils or ears, which are also the person's natural orifices or open wounds on the body of the person and in certain cases may be susceptible to partial penetration. "
takes into account the jurisprudence of various courts and Achaval [17] who says: "If we continue changing the concept of sexual intercourse, according to the opinions, attitudes and prejudices, we shall absorb the crime of sexual abuse and corruption in the increasingly broad set of rape and this will have also to be discussed whether or not possible violation of women (rape versa). "
adds that the English Code of 1995, although subjected to the same penalty, a distinction between the concept of sexual intercourse and anal or oral penetration, referring to:" when the aggression sexual abuse or sexual intercourse is to, introduction of objects or anal penetration or oral (...)", with what amounts to raise that to those standards the last two concepts are not included in the first [18]. The same happens in Italian criminal law which considers the "fellatio in ore" a form of masturbation by mouth others, not constituting rape and other lewd acts other than carnal union [19]. The same applies in the Criminal Law of Brazil in which the rape of art. 213 is equivalent to our rape, which is typical action sexual conjunction, which is the same as intercourse, not including the "fellatio in ore", although such conduct is caught in the following article (214) punished with a penalty slightly lower [20].
"DONNA [21] citing CARMONA SALGADO [22] says that in Spain "stated that" fellatio "should not incorporate the crime of rape, since no criteria in the strict sense of sexual intercourse and penetration only improperly, because the mouth is not a body this nature, although it may operate as a surrogate for it. It is rather a form of masturbation, as well as the so-called sex "inter femoral" is part of Article 430, in accordance with the Italian doctrine, "and adds," that German law directly speaks of intercourse, which directly exclude that concept. Since the enactment of Law 25,087 and must be understood the concept carnal access, taking into account both the text and purpose of the law. While the code maintains the expression 'sexual intercourse', which as seen has a long tradition in our projects, and a sense of what the term means, there is no alternative but to argue that the introduction of the male body vaginal or anal sex, not entering, consequently, orally or call fellatio, even though the legislature has invented this reform to solve this problem, adding 'any way', because, taken slightly expand the expression kind so huge. So if they wanted to fix or solve doctrinal dispute which analyzes (...) should add to the text, instead of 'any way', an exhaustive list of their intentions. "
This position takes PANDOLFI [23], who after citing the background, even the Bible mentioned above, concludes that "The attempt to include the" fellatio in ore "in the meaning of sodomy does not withstand careful analysis, and is only anchor the superfluous reference Weaver. Not even in the vocabulary of canon law today, it is accepted that extended meaning of the word sodomy, as evidenced by the appointment itself CHIAPINI. This is a fornication "onanística unnatural" [24]. And masturbation is a solitary vice, it is clear that this is not an activity cum altro, as by definition a sexual intercourse. Exegetical-dogmatic analysis arises because in our view clearly, that "fellatio in ore" is not carnal, and therefore if it is imposed against or without the will of the taxpayer, the criminal is affected the old art. 127 and not the 119. That is why after the reform, will find accommodation in paragraph 2 of Article 119 and not the third (...). It is appreciated then that the oral intercourse, and oral rape accordingly, not only does not exist in current criminal law exegetical grounds, but also implications a linguistic, anatomical, physiological, psychological, among others. " CREUS
not preclude the "fellatio in ore" currently constitutes a possible form of violation. Commenting about 25,087 law said: "While our doctrine the concept of sexual intercourse is not as restricted as in other (...) extending the penetration of the male penis from any orifice of the body of the victim as magazine a 'content' carnal sexual contact in the average education of society, some people persist in refusing to qualify as sexual intercourse to oral sex, despite the phrase 'by any means' however, that the inclusion of these cases was one reason that the legislator raised the desire for reform [25].
The law reform made by 25,087 positions were expressed regarding doctrinal and jurisprudential dissimilar situations. One of them came to the now clear that sexual abuse with sexual intercourse, it is rape, where penetration is by any means.
One of the record that the legislature had in mind to dispel the doubts about whether the "fellatio in ore" was rape or sexual abuse was the ruling by the National Appeals Chamber III in the case "Bronsztein, Daniel Henry s / rec . of appeal "-reg. 501/98 of 19/11/98- [26] where it was held that: "The crime of rape who penetrates her male sex organ in the mouth of a person of either sex, upon the use of force or intimidation" [ 27].
In accordance with that ruling in the case "Ifran, Carlos Alberto s / rec. of appeal "of 28.08.2002 and" Ramirez, Sergio M. s / rec. of appeal "of 04.02.2004 confirmed the same room that conduct falls within the expected figure and repressed by the art. 119, third paragraph, clause "b" of the Penal Code, every time, which as it emerges from 25,087 law to reform the article mentioned, constitutes the offense of rape as "any sexual intercourse by any means", one of which is the penetration of the male sexual organ into the mouth of a person.
This interpretation is the one that best meets the legal criteria, scientific and historical. In our legal tradition has always been considered legal violation of both the city of man to man by rectal (sodomitical), and the coupling mouth or oral intercourse [28].
"Fellatio IN ORE" RAPE or sexual abuse?
should be considered to be rape a violent act essentially characterized by the enjoyment of a person using another against their will, the whole carnal conjunction conducted on a person of either sex that involves direct activity of the libido of the actor, who can represent the same sex or a surrogate form of it with the intervention of his genitals, which there is penetration or immission, albeit minimal, in a body orifice of the victim regardless of whether the cavity is normal or abnormal for the act, is 'sexual intercourse', and thus constitutes the offense of rape and sexual abuse not the . As such, he commits the crime of rape who enter with their male sex organ in the mouth of a person of either sex by using force or intimidation.
opposition to this position.
As mentioned NÚÑEZ refused to consider the "fellatio in ore" violent as rape. He understood that the absence of glands erogenous mouth was not suitable as a constituent of concúbito. "The mouth, like breasts or other body part other than the vagina or anus, it is thus unable to generate intercourse, even abnormal. His violent or fraudulent use can not therefore involve a violent sex or improperly managed. The use of violent or abusive sexual means only sexual abuse in the foreign body [29]. In the same vein other qualified enlisted doctrinaire as FOLIAGE ANAYA [30], Molinari [31], GOMEZ EUSEBIO [32], MAGGIORE GIUSEPPE [33], MARIO MANFREDINI [34], FRANCESCO Vallardi [35] and Achaval ALFREDO [36], and this approach also emerged in numerous pronouncements court [37].
Following the interpretation of the National Appeals Chamber III, oral sex is no different from other penetration against nature and do not care if this channel is equipped or not erogenous zones. That access to it, as a substitute for your own vagina or erotic satisfaction, regardless of the status of the person who supports it, is guilty of this crime. It supports violent carnal access "as a crime-sharing is ruled out sensual of the victim and must reject the position of the doctrine that seeks to eliminate the mouth as a hole appropriate for the commission of the conditions for lack of erogenous.
Discussion jurisprudence.
The diversity of views was also reflected in case law, which was divided into different positions as did the authors.
A failure of Superior Court of Cordoba May 31, 1948 (LL, 51-917) stated that coitus in ore falls into the crime of rape. Nine years later, the same court changed its mind hosting a contrary view. On May 7, 1957 (LL, 60-25) found that the author, having made his act by violence, falls into the rating that corresponds to sexual abuse because although the act has been to an introduction of the sexual organ in the body of the victims, that penetration has not been anally, which is the only one under art. 119 of the CP and the current conception, it generates the proper sexual intercourse between men of rape.
Fittingly, the House Criminal and Correctional Federal Capital consistently maintained the same criteria regarding the "fellatio in ore" does not set the crime of rape, but of sexual abuse [38].
For its part, the Oral Criminal Court No. 14 by 11/10/1997 Case decided by majority that "the concept of carnal knowledge of art. 119 includes any penetration of male organ into the victim's body orifice, so as to allow intercourse or an equivalent thereof, so the "fellatio in ore" constitutes the offense of rape. "
To address this behavior we conceive of "fellatio in ore" has the characteristics of so-called privileged separate offenses. Certainly contains all the elements of another crime (rape) and may be worsening crime rates that other autonomous with its own type (class) unfair. This leads me to believe, to avoid confusion, referrals typical and frequent discussion of case law, which must be legislated as a separate offense and punishable by a sentence of more than the unjust that contains it (art. 119 CP). SOME
- CONCLUSIONS.
1. All acts should be treated conceptually as serious offenses from the perspective of law, and although the path of violent and forcible penetration of it by itself, no less significant is the degradation of the victim on the effects of the injury to legal right are intended to protect.
2. The new law should have been more specific when writing the offense, as the only possible way unifying the criteria is that it expressly stated that penetration by mouth is carnal and configure the aggravation of sexual abuse sexual intercourse.
3. The 'fellatio in ore' accomplished against the will of the taxpayer is undoubtedly the crime of rape and not the sexual abuse. The typical action of illicit coined in the art. 119 of the CP is forced to have sexual intercourse accomplished. That is, it is the penetration of the male sexual organ natural cavity of the victim. Taking this as true can be said that the penetration by mouth, whether man or woman the taxpayer and real or perceived as violence for its consummation is rape, as it is violated, as in other modes of access, the right of people to agree voluntarily on sensual treatment, to determine with absolute freedom of intimate behaviors and not to be sexually assaulted your reservation.
4. The legally protected in this figure are being referred to criminal courts for the legislature provided that such crimes appear high in natural law over positive law behavior, ie the joint area. That is why the latter seem to give in order of precedence in the Criminal Code by a recognition of inferiority compared to values \u200b\u200bgreater offenses covered by the media that have a place of prominence. It is, for now, the place to turn those who represent us when legislating. I therefore think that the legislature, to establish this offense, did not consider the significance of the conduct in question. This circumstance favored the modern legal asset protection depersonalizing to motivate government intervention, thereby causing the subsequent generation of atypical problems and dosimetry of the sentence.
5. Finally, attentive to what is stated in the previous chapter to the possible atypicality of "fellatio in ore" should open the debate about whether it would be necessary to include the Penal Code as an offense and punishable with proper noun with the unjust sentence of more than containing it (art. 119 CP).
* (Fuente. Mario Corigliano derechopenalonline)
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