The Crime of Spreading Sex, Nudity or Pornography

The crime of spreading sex, nudity or pornography

As of September 2018, a “new” crime was inserted in our legal system which, previously, due to a lack of legal and express provision, left a gap for the real typification of the act practiced and, consequently, the application of some sanction to the author of the fact.

Due to the total lack of criminal normative prediction of the crime, the conduct of disclosing a scene of sex, nudity or pornography, regardless of the context that was included, was usually perpetrated in the crime of defamation or, civil sphere, culminating, when convicted, in reparation for moral damages to the victim.

With the new typicity that arose in 2018 the legislative gap ceased to exist, and now expressly provides for the following wording of the crime typified in art. 218-C of the Penal Code:

Art. 218-C. Offer, exchange, make available, transmit, sell or exhibit for sale, distribute, publish or divulge, by any means – including by mass communication or computer or telematic system -, photography, video or other audiovisual record containing scene of rape or rape of vulnerable or apologetic or induces their practice, or, without the consent of the victim, sex scene, nudity or pornography:

Penalty – imprisonment, from 1 (one) to 5 (five) years, if the fact does not constitute a more serious crime.

Increased penalty

§ 1 The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed by an agent who maintains or has maintained an intimate relation of affection with the victim or for the purpose of revenge or humiliation.

The crime of disclosure of sex scene

The crime of disclosure of sex scene

We will cover in this sketch, only the conduct of sex scene, nudity or pornography, leaving for another opportunity our manifestation on the disclosure of a photograph, video or other audiovisual record that contains a scene of rape or rape of vulnerable or apology or induce your practice.

The criminal type refers to offering, exchanging, making available, transmitting, selling or exposing to the sale, distributing, publishing or divulging, by any means – including by mass communication or computer or telematic system -, photography, video or other registration audiovisual (…) without the consent of the victim, sex scene, nudity or pornography.

As noted, any conduct contemplated in the nuclei of the type, read “verbs”, when involving a scene of sex, nudity or pornography without the consent of the victim, the crime of art. 218-C. It is, therefore, a formal crime, where no naturalistic result is required.

It is very important to speak, even briefly, about what is a scene of sex, nudity and / or pornography.

Nudity is the total absence of clothing; the naked in itself; is the state or condition of nu; absence of ornaments or embellishments. It should be noted, in due course, that in order for the “naked state” to be configured, there is no requirement for the display of the genitals, only the condition of being naked. Thus, when someone’s nakedness is exposed (within the criminal type discussed) without their due consent, whoever has incurred exposure will respond for the conduct of having done so.

Although the concept of sex is extensive, in this case we can conceptualize as a sex scene the registration of at least two people, practicing carnal conjunction, oral sex, anal sex, various libidinous acts … It is the record of the sexual acts of those involved in it (scene).

In the porn scene, unlike the minimum requirement of two people on the sex scene, it is enough that only one figure in it practicing pornographic acts. By also possessing an extensive concept, we can classify pornography in this sketch as anything (conduct) that seeks to exploit sex vulgarly and obscene. In our understanding, this is the most fragile way of achieving the crime typification due to the many questions that may arise for the configuration or not of the crime.

It is worth observing that the concepts of nudity, sex and pornography are very subjective and each individual has a position on the subject, but only to instruct the content of this writing, we conceptualize them on the basis of those considered as “majority” in our society, however, far from being established as true, absolute and immutable.

Thus, only the fact of incurring any of the verbs of the criminal type, provided that without the consent of the victim, disclosing the scenes already listed, the subject (man and / or woman) will commit the crime.

Another situation that should be very well discussed (and reviewed in the debates) is the issue of the “intimate relationship of affection” as a cause of increased punishment. Contrary to what it seems, the intimate relationship of the criminal type is not only about the intimate relations of sexual affection, but all those that are intimate and affectionate.

Affection means feeling of affection or inclination towards someone, friendship, passion; it is a loving connection to someone or something. Thus, innumerable possibilities of intimate relationship of affection between author and victim, not necessarily only intimate sexual relationships, as we have said above.

It is worth mentioning that the crime foreseen in art. 218-C of the Penal Code is inserted within “Title VI – Crimes against Sexual Dignity” and sexual dignity can be tainted by any person and in various forms, not necessarily through an intimate relationship of sexual affection, as can give to understand the criminal type if not studied with more attention. Let’s see:

Increased penalty

Paragraph 1 – The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed by an agent who maintains or has maintained an intimate relation of affection with the victim …

Finally, the type does not require any specific intent for the configuration of the crime foreseen in the caput of the article, as it is inserted only in §1, 2nd part, of the device in order to increase the penalty of the agent when it affects, as we observe below:

Increased penalty

§ 1 The penalty is increased from 1/3 (one third) to 2/3 (two thirds) if the crime is committed (…) with the aim of revenge or humiliation.

In this way, the specific intent only falls on §2, 2nd part of the device when the agent intends to humiliate or revenge the victim for a variety of reasons, not necessarily sexual motives.

Such an observation is of the utmost importance for the application of the law according to what it envisages and not subjectively under the understanding of each individual interpreting it and in accordance with their beliefs, which would cause tremendous legal uncertainty and destabilize the purpose for which the norm was created, that is, to regulate human behavior in unison.

Certainly there are many other issues that should be better explored involving the typicity listed, but at this point it is necessary to bring to light of the discussion a little more of the materiality of the type so that the discussion about art. 218-C of the Penal Code.

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