The protection of children and adolescents has always occupied a central position in the Brazilian legal system. Even so, the numbers related to sexual violence against children and adolescents remain alarming. Official data from the Brazilian Public Security Forum reveal a constant increase in reports of rape of vulnerable individuals, demonstrating that the problem is far from being overcome.

Given this scenario, legislative proposals that increase penalties, impose mandatory DNA collection, and toughen the legal regime for those convicted of sexual crimes have been advancing in the National Congress. Recently, the Senate's Constitution and Justice Committee approved a bill that modifies the penal treatment of these crimes, reinforcing genetic identification mechanisms and aggravating legal consequences.

But the inevitable question arises: do increasing penalties and expanding restrictive measures represent an effective solution? And, above all, do these measures withstand the scrutiny of constitutionality?

The analysis requires going beyond the emotional appeal that the topic naturally evokes. It is necessary to examine the Brazilian penal system, the constitutional foundations of the protection of human dignity, procedural guarantees, and the logic of contemporary criminal policy.

The constitutional basis for protecting vulnerable people.

The 1988 Federal Constitution established a robust system for the protection of children and youth. Article 227 stipulates that it is the duty of the family, society, and the State to ensure, with absolute priority, the right of children and adolescents to dignity, physical and moral integrity, and protection against all forms of violence.

This constitutional mandate legitimizes public policies and penal interventions aimed at suppressing sexual crimes against vulnerable individuals. The Statute of Children and Adolescents (Law No. 8.069/1990) reinforces this duty of comprehensive protection.

In the criminal field, the Penal Code already provides for severe treatment for the rape of a vulnerable person (article 217-A), with a prison sentence of eight to fifteen years, which may be increased according to aggravating circumstances. This is one of the most severely punished crimes in the Brazilian penal system. Therefore, any new legislation must engage with this already quite rigorous framework.

What does the new regime approved by the CCJ propose?

The bill approved by the Senate's Constitution and Justice Committee proposes, among other points:

• Increased penalties for certain sexual crimes against vulnerable individuals;
• Expanding the mandatory collection of genetic material for inclusion in the National Genetic Profile Bank;
• Strengthening restrictions on progression to a less restrictive prison regime;
• Expansion of mechanisms for monitoring convicts.

DNA collection is already provided for in Law No. 12.654/2012, which amended the Penal Execution Law (Law No. 7.210/1984), mandating compulsory genetic identification for those convicted of heinous crimes or crimes committed with serious violence. The new regime seeks to expand and reinforce this requirement.

The stated objective is clear: to increase the State's investigative capacity and prevent recidivism, using technology as a prevention tool.

The constitutional issue of compulsory DNA collection.

One of the most sensitive points concerns the mandatory collection of genetic material. The measure raises debate about the right to privacy (article 5, X, of the Constitution) and protection against self-incrimination (article 5, LXIII).

The Brazilian Supreme Federal Court has already addressed this issue in the judgment of RE 973.837/MG (General Repercussion Theme 905), declaring the compulsory collection of DNA from those convicted of heinous crimes constitutional, provided that legal limits and procedural guarantees are respected.

The Supreme Federal Court (STF) understood that the measure does not violate the principle against self-incrimination, since it occurs after a final conviction and has the purpose of identification, not of immediately producing evidence against the convicted person.

In this context, expanding data collection to include sexual crimes against vulnerable individuals is likely to find constitutional support, provided that guarantees of proportionality and data protection are maintained.

Stricter penalties: real effectiveness or legislative symbolism?

Another key point is the increase in penalties. Brazilian criminal law already imposes severe sanctions for the rape of vulnerable individuals. The additional increase may have a significant symbolic impact, but criminal policy literature questions the effectiveness of simply increasing punishment as a prevention strategy.

Several studies indicate that the certainty of punishment has a greater deterrent effect than the abstract severity of the penalty. Thus, investments in investigation, police training, and forensic infrastructure can produce more concrete results than quantitative changes in the penalty.

The risk of so-called "penal populism," that is, legislative production driven by immediate social outcry, must be considered. The tightening of penalties needs to be accompanied by empirical analysis of its effectiveness.

Progression of regime and constitutional limits

The bill also discusses restrictions on parole. Since the reform promoted by Law No. 13.964/2019 (Anti-Crime Package), heinous crimes have had differentiated percentages for parole, especially in cases of recidivism.

The Brazilian Supreme Court (STF) has previously declared unconstitutional the absolute prohibition on progression of prison regimes (HC 82.959). The Court understands that the Brazilian penal system must preserve the individualization of punishment and the possibility of rehabilitation.

Thus, any excessive hardening of the sentence that makes progression impossible may face constitutional challenges. The protection of victims must coexist with the fundamental guarantees of the convicted person.

Genetic profile database and data protection

Expanding the DNA database also requires attention to the General Data Protection Law (Law No. 13.709/2018). Although genetic data collected for criminal purposes are subject to their own legal regime, principles such as security, purpose, and necessity remain relevant.

The indefinite storage or misuse of genetic data could lead to serious privacy violations. Therefore, strengthening the database must be accompanied by strict governance and audit protocols.

Between protection and guarantees: the necessary balance

The debate surrounding sexual crimes against vulnerable individuals is, understandably, highly emotional. However, criminal law cannot be guided solely by legitimate outrage.

The Brazilian Constitution demands a balance between protecting the victim and respecting fundamental rights. The effectiveness of criminal policy depends on normative coherence, an efficient investigative structure, and respect for due process.

The new regime approved by the CCJ signals a trend towards stricter regulations, but its effectiveness will depend on the quality of the regulations and practical implementation.

Conclusion: Responsible criminal policy or symbolic response?

Combating sexual crimes against vulnerable individuals is a constitutional and moral imperative. The State has a duty to act firmly to protect children and adolescents.

The expansion of DNA collection finds support in the jurisprudence of the Brazilian Supreme Court (STF), provided that constitutional limits are respected. However, the increase in penalties must be analyzed from the perspective of real effectiveness and proportionality.

More than just tightening regulations, the challenge lies in strengthening investigations, speeding up trials, and offering support to victims. Effective criminal policy is one that combines rigor with rationality, technology with safeguards, and repression with prevention.

The ultimate question is not whether we should protect vulnerable people, as that is indisputable. The question is how to do so in a constitutionally sound and truly effective way.

References

BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
BRAZIL. Penal Code (Decree-Law No. 2.848/1940).
BRAZIL. Law No. 8.069/1990 (Statute of the Child and Adolescent).
BRAZIL. Law No. 7.210/1984 (Penal Execution Law).
BRAZIL. Law No. 12.654/2012.
BRAZIL. Law No. 13.709/2018 (LGPD).
FEDERAL SUPREME COURT. RE 973.837/MG (Theme 905).
FEDERAL SUPREME COURT. HC 82.959.
Brazilian Forum on Public Security. Brazilian Yearbook of Public Security.