The Court of Justice of Minas Gerais absolved a 35-year-old man accused of vulnerable rape against a 12-year-old girl, recognizing the relationship as consensual and family-forming. The decision, issued on February 11, 2026, contradicted STJ jurisprudence and drew criticism from politicians across the political spectrum. The Minas Gerais Public Prosecutor's Office plans to appeal in higher instances.
On February 11, 2026, the 9th Criminal Chamber of the Court of Justice of Minas Gerais (TJ-MG) absolved a 35-year-old man accused of vulnerable rape for having sexual relations with his 12-year-old stepdaughter. The defendant had been convicted in the first instance, but the defense appealed arguing a lack of material typicality, with testimonies indicating consensuality in the relationship, which resulted in marital cohabitation and the birth of a daughter.
The rapporteur, Judge Magid Nauef Láuar, acknowledged the act as fitting under the Penal Code for minors under 14, but applied the 'distinguishing' technique to set aside the Superior Court of Justice (STJ) jurisprudence, which presumes absolute violence in such cases. The adopted thesis was that the presumption of violence can be exceptionally set aside if consensuality, stability, family support, and family nucleus formation are proven, without coercion or exploitation. In his vote, Láuar highlighted the consolidation of an affective and family bond, with common descent, and the victim's expression of will upon reaching majority, ensuring the defendant's presence in her life and that of their children.
The panel concluded there was no relevant injury to the victim's sexual dignity, making the application of the penal norm inappropriate. The adolescent's mother, charged with omission, was also absolved, as the atypicality of the main conduct emptied the imputation.
There was a dissenting vote from Judge Kárin Emmerich, who criticized the grounds as patriarchal and sexist, emphasizing that those under 14 are immature by law and deserve absolute protection, aligned with Brazil's criminal policy evolution against premature sexual initiation by adults.
The decision sparked negative repercussions. Federal Deputy Nikolas Ferreira (PL-MG) called it inappropriate in a video. Deputy Duda Salabert (PDT-MG) stated that 'relativizing the rape of children and adolescents is unacceptable' and will report to the Inter-American Commission on Human Rights. Deputy Erika Hilton (PSOL-SP) said she will report to the National Justice Council (CNJ), considering the situation equivalent to legalizing pedophilia. The Minas Gerais Public Prosecutor's Office, in a statement, reaffirmed the absolute presumption of vulnerability per STJ's Súmula 593 and Tema 918, and will take appropriate measures. The ruling, available until February 19, was placed under secrecy of justice after the controversy.
