A VITIMIZAÇÃO SECUNDÁRIA COMO FREIO À PRODUÇÃO E VALORAÇÃO DA PROVA: NOS CRIMES DE ABUSO SEXUAL CONTRA MENOR

Abstract

The present work deals with a forgotten subject of Criminal Law, the victim, under the post-crime approach, more precisely in the way the victim is treated by Organs formal control bodies when the fact is brought to the justice system. As if the damages arising directly from criminal practice were not enough, the victim still experiences the hardships of investigations and the process, often subjected to the unpreparedness of public servants or even subject to legal procedures that are naturally sources of revictimization. The so-called secondary victimization, which is nothing more than the institutional violence of the criminal procedural system, making victims new victims, is compounded when it comes to the crime of sexual abuse involving minors. This unprepared way of treating minor victims of sexual abuse ends up directly influencing the evidence, making it difficult to produce and evaluate the evidence, because the victim, already so vulnerable and weakened by the practice of crime, fearing being victimized again, has no interest in bringing the fact to the attention of the authorities and, even when the fact comes to be investigated, the victim has no interest in collaborating, whenever he realizes that he is there as the object of the investigation or the process and not as the subject of rights; now because the State is the one who brings a brake to the evidential production, acting in total disrespect to the child's best interests, not using adequate means to produce evidence without causing harm to minors, ends up producing a test of doubtful and fragile content, which often it leads to acquittals from real criminals. We will also analyze some Portuguese and Brazilian Law institutes, such as the Declaration for Future Memory and the Special Testimony, aiming to demonstrate that although there has been some legislative evolution in order to reduce revictimization, in practice, they have not yet been able to prevent constant secondary victimization in the context of sexual abuse involving minors. Finally, we will try to demonstrate that it is possible to collect this evidence without causing so much damage to the victims and, the more connected they are with the fundamental rights and guarantees of these people in the development process, the better we can extract from the evidence set, with a greater proximity to the real truth and the more just application of the right to the specific case