O artístico e o obsceno no direito penal: por uma ressignificação hermenêutica do artigo 234 do Código Penal Brasileiro

Abstract

This research aims at investigating the limits of the validity of art. 234 of the Brazilian Penal Code (PC) as well as to verify if and under what criteria obscene representations may be criminally relevant. It affirms at first, that an interpretation and application of art. 234 PC must be carried out in the light of the Constitution in order to implement values, rights and fundamental freedoms. Subsequently, it presents historical summary allusive to freedom of expression in the Brazilian Constitutions and concerning the encompassing typifications of the obscene in the homeland Penal Codes, to infer that sexual morality per se no longer legitimizes art. 234 PC. The research advances by the exegesis of the mentioned legal type, according to the traditional Brazilian penal doctrine: in the face of the dogmatic lag of almost all of its terms, it proposes the re-signification that suppresses the aesthetic disagreement between art and the obscene; in addition, it indicates a new legal objectivity to the type, which is now composed of the sexual self-determination of adults capable of expressing effective criminal-legal consent and the sexual integrity of children, adolescents and persons deemed sexually vulnerable under Brazilian criminal law. The logical-dogmatic consequences derived from this hermeneutic turn are contemplated in the research, in a critical-analytical course referring to each of the elements of the type under examination. The argument is validated from the perspective of constitutional values influential to the criminal matter and the constitutional penal principles, with the recognition that art. 234 PC deserves interpretation according to the Constitution. Finally, the research examines and criticizes PLS nº 236/2012 (preliminary draft of the new Penal Code), which proposes the abolitio criminis of the crime of written or obscene object. Considering that the axiological realization of the Constitution permeates the functional unity established between criminal policy and criminal dogmatic, and admitting that art. 234 PC is necessary for the protection of criminal-legal goods relevant to the Democratic Rule of Law, the hypothesis pronounces that the traditional hermeneutic model regarding the device must be re-signified so the effectiveness of values, freedoms and fundamental rights be only limited by constitutional rules and principles, establishing, from then on, the space of validity and effectiveness of the type. Although art. 234 PC doesn’t dispense with the proposed hermeneutic redefinition, it still demands reductionist resizing in the legislative field, able to situate it alongside social pluralism and minimum criminal law.