O PRINCÍPIO DA LEGALIDADE E A TEORIA DO DOLO NO ESTUPRO DE VULNERÁVEL: UMA ANÁLISE CRÍTICA DA INTERPRETAÇÃO JUDICIAL NO CASO MARIANA FERRER À LUZ DA LEI FEDERAL 14.245/2021.

Abstract

This work analyzes the dogmatic foundations of crimes against sexual dignity, with emphasis on the rape of a vulnerable person (Article 217-A, CP), confronting legal theory with the Mariana Ferrer case and the problem of institutional violence. The central problem lies in the complexity of configuring intent and mistake of fact in this crime, aggravated by media misinformation, which used the non-existent term "culpable rape," and by the selectivity of the judicial system. The objective is to demonstrate that the crime is essentially intentional and that the observance of the Principle of Legality and Taxativity is non-negotiable, even if the acquittal of the defendant seems socially unsatisfactory when based on a lack of evidence. Methodologically, a deductive approach is adopted, based on doctrinal bibliographic research (Nucci, Masson, Greco) and jurisprudential analysis of the STF, ADPF 1107. Theoretically, the text argues that the absence of a provision for a culpable modality in Article 217-A renders the conduct of an agent who, due to an invincible or vincible error of type, is unaware of the victim's vulnerability, atypical. In the Mariana Ferrer case, the judicial methodology of acquittal based on in dubio pro reo reflects the absence of conclusive evidence of vulnerability, but the work severelycriticizes the procedural performance of the defense and the magistrate's inertia, which allowed for revictimization. It concludes that Criminal Law cannot compensate for evidentiary or emotional shortcomings with arbitrary punishments, under penalty of violating legal certainty. However, the justice system must evolve to prevent institutional violence, an objective reinforced by Law No. 14.245/2021 (Mariana Ferrer Law). The regulations introduced in Articles 400-A and 474-A of the CPP (Brazilian Code of Criminal Procedure) consolidate the ethical-legal duty to preserve the dignity of the victim, prohibiting questioning about their past life, guaranteeing a more humane and less stigmatizing criminal process.