Why are not those committed by a serial killer a crime?
To answer the question “Why are not those perpetrated by a serial killer committed as crimes?”, We walk a legal path of delinquent continuity, two cases of serial killers, and criminal reiteration.
The continued crimes
The conceptualization of the delirium continuity is foreseen in art. 71 and its sole paragraph of the Penal Code. The normative literature of this article proposes the following requirements to characterize the continuous crime:
a) more than one action or omission;
b) practice of two or more crimes of the same kind;
c) conditions of time, place, manner of execution and the like;
(d) Subsequent offenses should be treated as a continuation of the former.
Brazil has adopted the theory of legal fiction for the nature of these criminal types, understood as criminal offenses collected and considered fictitious as a single crime. Thus, we apply the penalty to exasperation, that is, the increase in the number of infractions practiced, correlating in 1/6 for two infractions; 1/5 for three; 1/4 for four; 1/3 for five; 1/2 for six; 2/3 for seven or more illicit.
We also record that in order to characterize the delusional continuity, it is essential to fulfill the requirements of objective order – the same conditions of time, place and form of execution – and of subjective order – unity of design or subjective link between events (Mixed Theory or Objective-subjective ).
As a rule, the recognition will be given in cases of offenses committed in periods not exceeding 30 (thirty) days, with physical spaces bordering or near by. Besides the idiosyncrasy of the execution modes, never several of those previously committed.
These peculiarities determine the distancing with the other legal dispositions contained in articles 69 and 70 of the Penal Code (material and formal competition, respectively).
The national jurisprudence admits the delirium continuity in possible circumstances, such as:
a) rape and indecent assault, after 2009;
b) misappropriation of social security and evasion of social security contributions;
d) social security estelionato practiced by a third party;
e) crimes against life, since the understanding of Precedent n. 605 of the STF – it is not allowed continuity delinquency in crimes against life – was surpassed by the unique paragraph of art. 71 of the Penal Code, created by the 1984 reform.
This sole paragraph of art. 71 of the Penal Code is essential for constructing the imaginary of the delusional practices of a serial killer:
Sole Paragraph – In intentional crimes, against different victims, committed with violence or serious threat to the person, the judge, considering the culpability, the antecedents, the social conduct and the personality of the agent, as well as the reasons and the circumstances, to increase the penalty of one of the crimes, if identical, or the most serious, if several, up to triple, observing the rules of the sole paragraph of art. 70 and art. 75 of this Code.
The Federal Bureau of Investigation (FBI), the American police force pioneer in the design and production of the profiles of these delinquents, defines as serial killer as
a series of two or more murders, committed as separate events, usually but not always by a criminal acting alone.
His investigative theses are based on the forms of executions ( modus operandi ) and motivations, we emphasize them.
Two cases of serial killer
Of the different cases of sequential criminals in Brazil, we highlight the emblematic serial killer LAERTE SPONSOR ORPINELLI. He killed about 100 children, aged three to twelve years, for thirty (30) years, in the interior of.
He was convicted of 11 (eleven) deaths of 47 (forty-seven) confessed. The trials of these murders occurred in 2001 and 2008, in the counties where the crimes occurred.
The simplicity of this criminal agent made him go blind for thirty (30) years, ragged clothes, a red bicycle walker, a barman, a fool’s physiognomy, looking innocent.
This criminal, always with hands full of branches of aromatic plants, that would serve to disguise the odor of the bodies of his victims, had by modus operandi the brutality, by means of rape, torture, punches and / or strangeness, depending on the behaviors of the children.
Initially, he created a superficial bond of friendship with his parents. This bond of trust made it easy to take the little ones to wasteland, offering sweets and candy. Such a simple and imperceptible method. That community saw for three decades the ballast of the bloodstains of boys and girls growing up without any explanation.
His conviction was almost 100 (one hundred) years of imprisonment, with a fulcrum in art. 69 of the CP in the dosimetry of the penalty. Mathematically, this was due to the sum of the sentences of 18 (eighteen) years and 08 (eight) months in the region of Monte Alto / 2001; 16 (sixteen) years in the region of Pirassununga / 2001; 27 (twenty seven) years and 04 (four) months in the region of Franca / 2001; 15 (fifteen) years in Rio Claro / 2008 and 15 (fifteen) years in Rio Claro / 2008, totaling 98 (ninety-eight) years in prison.
However, if the practice of his murders were to be understood as a continuity of offense, the increase in sentence would be applied to the most serious crime up to threefold, according to the third phase of dosimetry.
In the present event, the most serious offense (12 to 30 years) would be the homicide. Hypothetically, after the first and second phases of the dosimetry, the defendant would have a maximum of 30 years of sanction, multiplying it by three, his conviction would reach a maximum of 90 (ninety) years of imprisonment for more than 100 (one hundred) deaths.
The Public Defender of Rio Grande do Sul, brilliantly, materialized in Habeas Corpus request nº 316.716 / RS the hypothesis of delinquent continuity in crimes practiced by serial killer. This constitutional remedy argued on the recognition of the practice of crimes continued by serial killer ADRIANO DA SILVA, in Passo Fundo, in the years 2003 and 2004.
In the proceedings of the cases number 120/20400000350, 021/20500011100, 021/20500011089, 021/20500011267, 021/20700076249, have the temporal order of the crimes the dates of 02/04/2004, 07 and 14/10/2003, 14 / 09/2003, 10/31/2003 and 03/09/2003, respectively.
We noticed that the interstices occurred within a maximum of thirty (30) days, in the same locality, surpassing the objective requirements of conditions of time, place, perhaps, the way of execution and the like. Possibly it came from court decisions that did not recognize the similarities of executions.
After forcing anal intercourse with his victims (boys), following the same executory steps, the killer killed by asphyxiation, or strangulation, or hanging, or strangulation and concealment of corpse.
From the Court’s decision:
The Court of origin, with an eye on the characteristics of each offense, notably the objective aspects (time, place, mode of execution, participation of other persons or not, identified or not, etc.) concluded that there was no delinquent continuity, but a criminal reiteration of someone who made the crime a means of life, and there is not yet a subjective relationship among the events, because the various actions would have been carried out in different contexts. Therefore, there is no evidence to the Court of origin that conduct is a planned and organized continuation of one another, which excludes delinquent continuity. HABEAS CORPUS Nº 316.716 – RS (2015 / 0033881-9), rapporteur MINISTRA MARIA THEREZA DE ASSIS MOURA.
From criminal reiteration
Faced with the premises of the national trials “(…) to the crime series with a difference of months, delinquent continuity is not recognized, but rather the hypothesis of criminal reiteration, in which the rule of material accumulation applies, since the habituality can not be confused with continuity, then in this case, the succession of crimes is circumstantial, whereas in that the reiteration of conduct reflects the criminal activity as modus vivendi of the agent (TJPR; ApCr 0639055-2; Third Criminal Chamber, Curitiba; Rel. Des. Edvino Bochnia ” , We note that these types of criminals delight in the fateful moment of execution.
For better knowledge: the recognition of the series of murders is in a single process, with the primary objective of satisfying the desire to kill. In the reliable occurrence of compliance with art. 71 of CP (wholeness), those convicted of criminal restraint should have reviewed cases for the benefit of continued crime. Nevertheless, the National Courts are established through judicial activism, which
continuity of delinquency, because it implies true benefit to those delinquents who, in the same circumstances of time, manner and place of execution, practice crimes of the same kind, must be applied only to those accused who really prove worthy to receive the blessing. (STF HC 101049 / RS – RIO GRANDE DO SUL HABEAS CORPUS Rapporteur: Min. ELLEN GRACIE Trial: 04/05/2010 Judging Body: Second Panel Publication DJe-091 DIVULG 20-05-2010 PUBLIC 21-05-2010 .
In fair sense, we must rediscuss the crimes of serial killers, legislating specifically on their psychopathic practices, avoiding the sentences of security measure (indirect acquittal) or criminal reiteration (improper punishment).