Evolutive exegesis of the limits of the effectiveness of the crime of “writting or obscene object” in the light of the guarantee of free speech

Abstract

This article aims to delimit the field of effectiveness of art. 234 of the current Brazilian Penal Code (CP - Decree-Law No. 2,848, of December 7, 1940), basing it through historical exegesis based both on the development of the guarantee of freedom of artistic expression and on the changes in criminal classifications related to the crime of “obscene writing or object”. Thus, the devices relevant to the subject that were included in the Constitutions that were in force in Brazil from the years 1824, 1891, 1934, 1937, 1946, 1967, in addition to those of the 1988 Constitution (arts. 5, incs. IV and IX, 220, §§ 2 and 3 and 221 and items), as well as considering the incriminating norms alluding to the matter in the Brazilian penal codifications of 1830, 1890, 1932, of the Alcântara Machado Project (of 1938), of the Decree-Law nº 1.004, of 1969, of the Penal Code Draft (of 1998) and, finally, art. 234 of CP, observing the successive reforms on Title VI of its Special Part. This comparison results in the hypothesis: the intersection of the evolutionary curves of the aforementioned constitutional and criminal precepts demonstrates that, in contemporary times, art. 234 of the CP no longer protects sexual morality per se and much less aims, through criminal protection, to impose certain aesthetic standards, since, in the Federative Republic of Brazil, the functional unity between criminal policy and criminal dogmatics, subordinated as it is to the values, rights and constitutional guarantees and freedoms, can never, in an authentically plural and democratic society, disconnect from its own legality.