Constrangimento e falta de consentimento livre serão conceitos equivalentes? O caso do stealthing

Abstract

In this Dissertation we address the issue of consent in the sexual sphere and its importance for the determination of the existence or absence of crime. We studied the adequacy of the legislative changes in the Portuguese Penal Code to the reaching of the objectives outlined by article 36 of the Istanbul Convention, a Treaty to which Portugal is a State-Party. Since the Portuguese legal system has adopted a model of consent that is apparently different from the one imposed by the Convention, we compare the two and realize that there are differences between them that could, possibly, allow conducts worthy of criminalization to go unpunished. For some people, non-consensual condom removing – that is, stealthing – may be one of these conducts. We carried out a study of Comparative Law that allowed us to conclude that stealthing is a topic that, legally, is still very much in its infancy, with final judicial decisions condemning this crime only in Switzerland, Germany, New Zealand and the United Kingdom, and legislation specifically mentioning it in California (United States of America) and the Australian Capital Territory (Australia). Having done this study, we asked ourselves if this conduct could be included in the current Portuguese Penal Code. There are differences of opinions, however, in our view, stealthing could be comprehended within the article 164, no.1 of the Penal Code, which establishes the crime of rape.

Date of Award	20 Sept 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria Elisabete Ferreira (Supervisor)