XXXII Brazilian Bar Examination gapes the bleeding wound of omission crimes

Author: Carolina Christofoletti

Link in original: Click here

During the last 24 hours, there may not have been anything that was more commented in Brazil than the XXXII Bar Examination. Google trends shows, very clearly, how much the search for the Bar Examination increased, what is to be perceived as barely normal after an important examination of such.

After a whole year of suspended examinations due to the COVID-19 situation in the country, the exam was finally applied. And the candidates were put there in front of, at least, an unexpected Titan: Corporate Law? But transnational one. Criminal law? Committed in another country. Tax Law? If the income was received in another country or if the country decides to declare war. Constitutional Law? Be aware of the Parliamentary Inquiry Commission and its democratic composition. Labour Law? If your worker is watching pornography.

The XXXII version of the Bar Examination was, in fact, a very contemporary exam. Contemporary, also, because the Golias there was all those things that… you have never stopped to think about.

And one of those things was omission crimes. Omission crimes are, as they are set in Brazil, a logical incongruence. When the Bar Examining Commission asked the candidates if a physicist that denied medical help to someone that was shot commits intentional murder, candidates though this was absurd. It was but the correct answer.

Forget what the law says and let us give some minutes to reflect on the moral problem here: When we say that the physicist here must be sentenced identically to the one who shot the guy, the disproportionality of things appears. Appear, indeed, because omission crimes are, originally, a short of authorship problem: They are the gatekeepers that open the gate.

Alright, we may agree with the gatekeepers. We may not, but, agree that whoever is positioned after those gates has the same degree of culpability. When the omission arrives at a time when the causality chain has already begun, the different degrees of “contribution” to a death becomes more visible.

In the case of the doctor, Brazilian Law had another provision: Omitting assistance. This is a crime that can be perpetrated by anyone, and also, theoretically, the doctor. If we have a more “beneficial” criminal law provision and that regulates exactly the same situation, why should we say that the doctor acts as an intentional murder? We could assume that, indeed: If we admitted author’s criminal law (what Brazil does not).

But not all omission crimes are regulated like that. Omission is part of the general part of criminal law in Brazil, meaning that, in theory, every crime has the possibility of being perpetrated through omission. There are but some conditions: The duty of helping must exist: by law or contract. The problem with our doctor is that the duty of helping is not written in law but on Ethical Codes and that the contract of “avoiding a harmful result” should, in this occasion, specify who should one take care of.

Do you want to make things harder? The physicist did not refrain from helping the guy because he was bad… but because he was in a strike mood. Call the Collective Labour Law to solve this case.

Is there anything wrong if we call the physicist that does not help the injured guy an intentional murder? Is that action equivalent to shooting someone?

But Brazilian Criminal Law says whoever “guarantees” another legal good has the duty to avoid the result, which, in this case, is not the trigger of the gun but the death. Avoiding that someone injured by a gun die. But do physicists have this godlike power, or it is asking too much?

Omissive crimes work well in theory… if the causal chain has not started. What if the chain of causation has, but, in fact started?

What if one does not have any control of the causal chain… wouldn’t his legal obligation be, only, please do something?

Face the contradiction.

In a football analogy… Catch the XXXII Examining Commission as a ball in the chest!

Answer it, though contradictorily, but do really think about it… later on!