Understanding Homicide and Abortion Laws in Brazil
Homicide
Homicide
Circumstances privileged: What are they? Given offenses aggregate and influence penalties; e.g., violent homicide under emotional distress.
What are Subjective Circumstances?
Related to the agent’s psyche, why do crimes occur, or personal conditions of the subject are incomunicable.
Intent and Awareness
Intent is the most ____________ _______________
Awareness, will.
What is Second-Degree Fraud?
Consequences desired result from the chosen means. For example, Pedro wants to kill by poisoning food and ends up killing everyone.
What are Qualified Homicide Cases?
Pay or reward for motives or others. Clumsy motives; futile; use of poison, fire, explosion, asphyxiation, torture, or other cruel means. Betrayal, ambush, dissimulation, difficult defense against the offense. Ensuring execution; imputation and other advantages of crime.
Example of Privileged Homicide with Relevant Moral Value
Is killing to meet international obligations, particularly accompanied by feelings of compassion, euthanasia?
Automated Killing and João Paulo
Is the crime of homicide in relation to João Paulo? Homicide with second-degree fraud, formal crime UNFIT.
Understanding Subjective Predictability
The agent had the capacity to foresee the result in this case.
Understanding Objective Predictability
A common citizen, placed in similar circumstances, would have the capacity to foresee the expected result.
Do We Include Preventive Imprisonment for Culpable Crimes?
No.
Does Subjective Predictability Form Part of the Structure of Culpable Crime?
Yes, as absent the agent, it would be required to have diverse conditions.
What Does the Principle of Exceptionality State?
The rule is punishment as a fault = punishable as provided by law.
What is the Nature of the Decision Granting Legal or Judicial Pardon?
Declaratory extinction of punishability.
Declaratory Sentences and Convictions
A declaratory sentence does not generate conviction; it generates a conviction under the law with fulcrum 11719/08, where it is possible to fix a minimum value for ______________, allowing execution already authorized by ________________.
Compendium 18 of the Superior Court of Justice
Just reading. The judicial declaration of pardon is the extinction of punishability, subsisting without any condemnatory effect.
What Should the Public Prosecutor Do in Crimes Terminated by Culpable Ineptness?
Describe the impermissible negligence or recklessness.
In the Fifth Hypothesis of Manslaughter
The judge may apply grief if the consequences of the infraction affect the agent so seriously that criminal sanctions become unnecessary. Is it necessary for this to be familial? No, it does not need to be parental.
What Does Incompetence Mean?
Lack of technical aptitude in exercising art, craft, or profession.
Article 302 CTB – Committing Manslaughter with a Vehicle
Article 121 § 5 – In the case of manslaughter, the judge may apply grief if the consequences of the infraction affect the agent so seriously that criminal sanctions become unnecessary. Judicial pardon does not fit the event of Article 302, only 121 § 5, plus jurisprudence supports.
What Does Recklessness Mean?
Fault in the form of commissions.
Visualize the Table Below:
Wrongfulness, typicity, culpability
Subjective predictability, objective predictability
Culpable Crimes and Detention
We can arbitrate _____________
The Law 11.719/08
Maps the possibility of fixing a minimum value for reparations, thus, does it give us material or moral damages? Doctrine = mandatory when it comes to material damage.
Infanticide
Infanticide
Among the specialized elements of infanticide, what does etiologic mean?
What is Infanticide?
It is manslaughter or guilty means? Failure to fulfill the objective duty causing the desired result is not 1.
Article 123 – Killing Under Puerperal State
Killing, under the influence of the puerperal state, one’s own child during childbirth or shortly after:
Penalty – detention, 2 (two) to 6 (six) years.
This is called homicide _____________ or doctrine ____________.
Special, Privileged Homicide
Define puerperium? Delivery from the beginning until the woman returns to the condition of pre-pregnancy.
In the Crime of Infanticide
The mother kills during childbirth, committing the crime of _____________, after delivery, the crime of _____________ is committed, and during or shortly after in a puerperal state, the crime of ___________________ is committed.
Abortion, homicide, infanticide.
Is Infanticide Punishable?
Infanticide is only punishable by way of fraud, in the case of the mother suffocating the newborn or in a puerperal state, she responds to the crime of _______________.
Murder, culpable.
In Contestation
If the doctor instigates the parturient, is it correct to say that the doctor responds under Article 121 and the parturient under Article 121 as a participant? However, the situation is incoherent, given that when the mother kills, she responds under Article 123, and when she instigates, she will kill under Article 121. Thus, how has the majority resolved this situation? The parturient and the medical professional respond under Article 123.
In the Crime of Infanticide
The active subject is the one who must ___________, _______________, and the passive subject of the crime is called one of this form of _______________.
Parturient
Neonate
Bi-proprio
In Puerperal State
If the patient or doctor kills the neonate, what are the two crimes? Others are not co-criminals in infanticide.
Article 123 – Killing Under Puerperal State
Killing, under the influence of the puerperal state, one’s own child during childbirth or shortly after:
Penalty – detention, 2 (two) to 6 (six) years.
Abortion
Abortion
Article 134 – Exposing or abandoning to hide one’s own dishonor:
What is the difference between Article 123 and Article 134 of the Penal Code?
123 = mother with the intention of killing = jury
134 = the death is = not jury preterdolosa.
Classification of Accidental Abortion
Accidental in general, stay, trauma, etc.
Classification of Legal Abortion
Allowed to save lives of the pregnant woman and pregnancy resulting from rape.
Classification of Social Economic Abortion
Known as miserable abortion: No conditions to sustain the child.
Classification of Honorary Abortion
To hide grave adulterous situations.
What is Abortion?
It is the interruption of pregnancy with the destruction of the product of conception.
Abortion Caused by Third Parties
Article 125 – Causing abortion with the consent of the pregnant woman:
Penalty – imprisonment from 3 (three) to 10 (ten) years.
Who is the passive subject? Criminal law considers the fetus and pregnancy as the passive subject.
What Happens When a Woman Kills a Pregnant Woman?
What are the answers for crimes? Is there a formal contest? Killing assumes the woman and the fetus = murder and abortion
Yes, UNFIT.
What is the Monistic Theory?
Regardless of the number of co-authors or venturers, they respond for one crime only, according to their culpability.
In the Case of Pregnant Suicide
If she does not die but interrupts a pregnancy, does she meet Articles 124, 125, or 126 of the Penal Code? Article 124, with virtual intent.
Monistic Theory Explained
Regardless of the number of co-authors or participants, all respond for one crime only, according to their culpability. Section 29-CP.
Article 29 – Anyone who, in any way, contributes to the punishment of a crime is liable according to their culpability measure. (Redaction given by Law No. 7209, of 11.7.1984)
Article 124 – Responds to the pregnant woman under Article 124 and the instigator under Article 126. Is this an exception to the monistic theory? Yes.
What is a Common Crime?
Does not require special qualities of the supporting agent and co-authors and participants.
What is a Proper Crime?
Requires special qualities of the agent different from common crimes, also supports co-authors and participants.
Example of a Proper Crime
Where there is participation in the competition of agents? To induce a witness not to lie.
What is a Proper Crime?
Identical quality to the proper crime requires special qualities when the agent is different; the difference is that it only supports participants and not co-authors.
When is the Crime of Abortion Consumed?
With the death of the fetus, it is independent or outside the womb within maternal.
Voluntary Abortion
Is the interruption of pregnancy with the death of the product of conception, either inside or outside the uterus. For example, if the fetus is expelled after three months alive and dies later, it is considered accomplished abortion. If the fetus does not die? They respond for the attempt.
Article 126 – Causing Abortion with Consent
Penalty – Imprisonment from one to four years.
Sole paragraph. The application of the previous article’s penalty is to the pregnant woman who is not older than fourteen years, or is mentally weak, or if consent is obtained through fraud, violence, or serious threat.
Who are the Active and Passive Subjects?
Article 127 – The penalties in the previous two articles are increased if the abortion causes serious bodily injury or death to the pregnant woman.
Inducing a Girlfriend to Commit Abortion
If the boyfriend induces the girlfriend to commit abortion, and she dies, what crime is he liable for? Participant under Article 124, not committing Articles 125 or 126.
Medical Abortion
Medical maneuvers that result in the death of the pregnant woman but do not succeed in interrupting the pregnancy, what is the crime? The first current considers abortion as qualified, consummate crime, “he preterdoloso,” admitting attempts even in the spirit of Article 610 of the STF.
There is a crime of larceny when consumed or homicide, even if the agent does not realize the subtraction of the victim’s goods.
Article 128 – Medical Abortion
Is not punished when performed by a doctor:
Necessary abortion
I – if there is no other means to save the life of the pregnant woman;
Does the pregnant woman require consent for abortion?
No, but the doctor must present proof of death.
Is Abortion an Exception to the Monistic Theory?
Yes, the monistic theory serves as a foundation for everyone who comes together to pursue the same criminal target.
Abortion is different – the pregnant woman goes and asks the doctor to perform the abortion, paying for it. In this case, they would be co-authors, having a common goal, thus responding for the same crime. However, we have to attempt to make an exception, as abortion does not follow the monistic theory; the pregnant woman will respond under Article 124, and the doctor under Article 126, meaning each agent responds for their offense.
What are the Requirements for Necessary Abortion?
Therapeutic or prophylactic practice by a physician;
Danger to the life of the pregnant woman;
No other means to save the life of the pregnant woman.
Article 128 – Medical Abortion
Is not punished when performed by a doctor: (…)
If the pregnancy results from rape, the abortion is permitted with the consent of the pregnant woman or when incapable of a pseudo-legal representative.
Do you need a police report to perform this abortion? The law says nothing, but the STF understands that it is necessary.
What if a Pharmaceutical, Veterinarian, or Nurse Performs the Abortion?
They respond for the crime? Yes.