Análise das medidas (des)penalizadoras da persecução penal no contexto dos crimes de violência doméstica e familiar contra mulher

Abstract

This research aims to analyze the implementation of (de)criminalization measures provided during criminal prosecution in the context of crimes of domestic and family violence against women. The main objective of this work is to examine the sociocultural and legislative context of the creation of the Maria da Penha Law (Law No. 11.340/06) and its specific purposes related to the provisions on alternative institutes to the prison sentence, as well as its contrast with the case law on the limits of the applicability of these criminal substitutes in the context of gender violence. The decriminalizing measures of the penal transaction and the conditional suspension of the process, provided for in Law No. 9.099/95, the Non-Criminal Prosecution Agreement (ANPP), incorporated into the Penal Code by Law No. 13.964/2019, as well as the penalizing institutes of the restrictive penalty of rights and the conditional suspension of the sentence will be addressed in particular. The methodology is characterized by qualitative research, with the methodological procedure being a bibliographic review of theoretical references such as books, articles, and master's and doctoral dissertations. Through the documentary method and the collection of secondary data from the official platforms of the Superior Courts, the case law on the use of (de)criminalization institutes will be analyzed, having as an initial time frame the important decisions of the Supreme Federal Court between 2011 and 2012, which deal with the constitutionality of Law No. 11.340/06. Given the study, it was concluded that there were significant advances regarding the harmony of the jurisprudence emanating from the Superior Courts to draft Law No. 11.340/06. However, the exception to the possibility of applying conditional suspension of the sentence in cases of violence against women was verified, demonstrating contradictory aspects between the case's law themselves and between these and the purposes on which the Maria da Penha Law is based.