Women and Justice: Location

Domestic Case Law

[Undisclosed parties] v. Ministério Público Tribunal da Relação de Porto (2018)

Statutory rape or defilement

Appellant B (name omitted from the public record) challenged the district court’s (Tribunal da Comarca) ruling that convicted him of child sexual abuse for having sexual intercourse with underage victims F, E and K (names omitted from the public record).  Appellant B argued that the victims were not sexually inexperienced, and had intercourse with him out of their own free will, as the victims had sufficient means to reject him if they had so decided.  Under the Portuguese Penal Code, a person who, being over the age of 18, maintains sexual intercourse or relations with victims between the age of 14 and 16, taking advantage of their inexperience, is guilty of child sexual abuse (Sec. 173).  The appellate court (Tribunal da Relação) held that victims between the age of 14 and 16 are still considered inexperienced despite having prior sexual relations.  The appellate court upheld the district court’s conviction of Appellant B.



[Undisclosed Parties] v. Ministério Público Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2018)

Domestic and intimate partner violence

Appellant A (name omitted from the public record) challenged the district court’s (Tribunal da Comarca) decision which convicted him of domestic violence, for having inflicted physical and psychological injuries on his spouse, who later filed for divorce.  As provided under the Portuguese Penal Code, the crime of domestic violence occurs whenever a person—repeatedly or not—inflicts physical or psychological harm to their spouse or former spouse (Sec. 152).  The Appellant argues that the occurrence of the crime of domestic violence requires repeated episodes of physical or psychological harm for the marital relation to be damaged by the injuries of the spouse.  In this case, the Appellant argued that there was only one episode of physical and psychological injury, and he therefore should be tried for the lesser crime of inflicting bodily injury.  The appellate court held that the crime of domestic violence is not characterized by repeated episodes of harm, but rather by the gravity of the harms inflicted.  The appeal was denied.



Ministério Público v. [Undisclosed Parties], 39/09.0TAFCR.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2011)

Sexual harassment, Statutory rape or defilement

The defendant, a teacher, was charged with sexual harassment of children for multiple offenses against two of his students. On repeated occasions, the defendant inappropriately touched and made obscene gestures to the students, who were 11 and 12 years old. The Lower Court found the defendant guilty of the charges. The defendant appealed, arguing that he did not have sexual intent towards the students, and therefore did not satisfy all requisites of the crime of sexual harassment under section 171 of the Portuguese Penal Code. The Appellate Court affirmed the Lower Court’s decision, and held that the crime of sexual harassment of children under section 171 of the Penal Code requires only that the victim’s freedom and sexual self-determination is hindered by the defendant.



Ministério Público v. [Undisclosed Parties], 9/14.7GCTND.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2016)

Sexual harassment, Statutory rape or defilement

The Public Prosecutor (Ministério Público) brought charges against the defendant, “A” (name omitted from public record), for sexual harassment against the victim, “D” (name omitted from public record) a minor girl. A had naked pictures of D and threatened to expose them using the internet unless D agreed to have sexual intercourse with him. The Lower Court held that D’s conduct did not meet the requirements of sexual harassment under section 163 of the Portuguese Penal Code, which requires a grave threat to the victim as an element of the crime. The Lower Court held that the threat to expose naked pictures of D is considered a grave threat under the Portuguese Penal Code. The Public Prosecutor appealed, and the Appellate Court reversed the decision, finding B guilty of sexual harassment.



Ministério Público v. [Undisclosed Parties], 43/13.4JAPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2016)

Sexual violence and rape

The Public Prosecutor (Ministério Público) brought charges against defendant, “B” (name omitted from public record), for the crime of rape for having anal sex with the victim, without the victim’s consent. The Lower Court found B guilty. B appealed, arguing that the victim facilitated the anal penetration, and therefore the court should find that the victim consented. The Appellate Court found that, although the victim facilitated penetration, the victim did so to preserve his integrity, which does not qualify as consent. The Appellate Court affirmed the Lower Court’s decision finding B guilty of rape under section 164 of the Penal Code.



Ministério Público v. [Undisclosed Parties], 1004/07.8TALMG.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2013)

Statutory rape or defilement

The defendant, “B” (name omitted from public record), was sentenced in the Lower Court for statutory rape and qualified rape of the victim, a minor girl. The court found that the defendant had repeated sexual intercourse with the victim, who had initially consented to sexual intercourse but, over time, changed her mind and wanted to end her sexual relationship with B. B threatened to have sexual intercourse with the victim’s sister, and in order to prevent that, the victim continued her sexual relationship with B. On appeal, the Appellate Court partially overturned the decision to absolve B from the charges of qualified rape. The Appellate Court held that B did not threaten the victim personally, and therefore could not be charged with qualified rape under section 163 of the Penal Code. However, the Appellate Court further held that, under Section 174 of the Portuguese Penal Code, when an adult practices sexual acts with a minor aged from 14 to 16, it is considered statutory rape if the evidence suggests that the adult has taken advantage of the minor’s inexperience, and consent from the minor does not automatically rebut the presumption of inexperience. Therefore, the Lower Court’s decision was affirmed with respect to the sentencing of the defendant as guilty for statutory rape.



Ministério Público v. [Undisclosed Parties], 6/08.1ZRPRT.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2014)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Public Prosecutor (Ministério Público) filed charges of human trafficking and sexual exploitation of minors against the defendants, “B” and “C” (names omitted from public record). Evidence demonstrated that B and C would transport women and minors from Italy to Portugal and hold them against their will to work as prostitutes at adult entertainment facilities. The Lower Court found B and C guilty on charges of both human trafficking and sexual exploitation of minors, which constitute separate crimes under the Portuguese Penal Code. B appealed to the Appellate Court, arguing that she could not be sentenced twice for the same conduct. The Appellate Court affirmed the Lower Court’s decision, and held that the crimes of human trafficking and of sexual exploitation of minors violate different rights of the victims, which warrants the stacked sentences of both crimes as provided under Sections 160 and 175 of the Penal Code.



Ministério Público v. [Undisclosed Parties], 481/14.5JABRG.P1 Tribunal da Relação de Porto (Court of Appeal of Porto) (2017)

Statutory rape or defilement

The Public Prosecutor (Ministério Público) brought charges of child pornography against defendant, “B” (name omitted from public record), for committing the crime of child pornography. The Public Prosecutor argued that B. kept naked pictures of a 14-year-old girl. The Lower Court found B not guilty of child pornography, because B did not coerce the girl to send him the pictures, but instead had received the pictures from the girl out of her own free will. The Appellate Court reversed the decision, holding that the means by which the pictures were obtained were irrelevant, and maintaining that possession of naked pictures of a minor is sufficient for the crime of child pornography under section 176 of the Portuguese Penal Code. 



Ministério Público v. [Undisclosed Parties], 469/13.3PBAMD.L1-9 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2015)

Domestic and intimate partner violence

The Public Prosecutor (Ministério Público) brought charges of domestic violence against defendant, “Mr. XXX” (name omitted from public record), for recurrently calling victim, “Ms. ZZZ” (name omitted from public record), a “filthy pig” or a “mental retard.” The Lower Court found that the actions by Mr. XXX did not qualify as domestic violence under section 152 of the Portuguese Penal Code which requires repeated acts of physical or emotional abuse towards a spouse or ex-spouse. The Appellate Court overturned the Lower Court’s decision, affirming that the evidence proved repeated abusive conduct by Mr. XXX, and found that the crime of domestic violence occurred despite the fact that Mr. XXX and Ms. ZZZ were not married, as they had lead a life together for a period of time.



Ministério Público v. [Undisclosed Parties], 108/14.5JALRA.E1.S1 Supremo Tribunal de Justiça (Supreme Court of Justice) (2016)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

One month after marrying the victim, “BB” (name omitted from public record), the defendant, “AA” (name omitted from public record) coerced BB to become a prostitute so she could help with their financial problems. After BB engaged in sexual relations as a prostitute, AA began to physically assault BB and to threaten to kill her children, alleging that was enjoying being a prostitute. Concurrently, AA’s 15-year old daughter “CC” (name omitted from public record) moved in with AA and BB, and shortly thereafter, AA engaged in non-consensual sexual activities with CC for approximately six months. AA had previously convictions for robbery, physical harassment and child pornography, among others. The Superior Court of Justice found AA guilty of the crimes of promoting prostitution under section 169 of the Portuguese Penal Code, domestic violence under section 152 of the Portuguese Penal Code, sexual abuse of a person incapable of resistance under sections 164 and 177 of the Portuguese Penal Code and illegal possession of weapon, and sentenced AA to 16 years of imprisonment.



Ministério Público v. [Undisclosed Parties], 570/14.6PFSXL.L1-3 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2016)

Statutory rape or defilement

The Appellate Court reaffirmed the District Court’s decision which found defendants, “Mr. V” and “Ms. M” (both names omitted from public record), guilty of child sexual abuse pursuant to sections 171 and 177 of the Portuguese Penal Code and sentenced Mr. V and Ms. M to five years in prison. According to evidence (including photos and victim’s testimony) presented to the Appellate Court, Mr. V and Ms. M would play games with the victim, “L” (name omitted from public record), their five-year-old daughter, during which L had to touch and kiss part of Mr. V’s and Mrs. M’s bodies in exchange for candies or the ability to watch television. The Appellate Court held that, although the conduct in question occurred in an apparently playful environment, Mr. V and Ms. M incentivized L to behave with sexual connotation that could jeopardize her personal development. 



Ministério Público v. [Undisclosed Parties], 3/16.0PAPST.L1-9 Tribunal da Relação de Lisboa (Lisbon Court of Appeal) (2017)

Domestic and intimate partner violence

The Public Prosecutor (Ministério Público) brought charges against two spouses, as defendants, for domestic violence under section 152 of the Portuguese Penal Code. The Public Prosecutor alleged that in a particular episode, both spouses physically and verbally assaulted each other, and should therefore both be penalized for the crime of domestic violence. Both spouses had previously been convicted of charges of domestic violence. In this case, however, both the District Court (Tribunal da Comarca) and the Appellate Court found that although the Portuguese Penal Code does require physical or mental damages to a spouse or former spouse in order to be convicted of domestic violence, spouses cannot both be convicted of domestic violence if damages were caused reciprocally.



Ministério Público v. [Undisclosed Parties], 1184/14.6PIPRT.P2 Tribunal da Relação de Porto (Court of Appeal of Porto) (2017)

Domestic and intimate partner violence, Stalking

The Public Prosecutor (Ministério Público) brought charges of domestic violence against the defendant, “B” (name omitted from public record), for stalking his former girlfriend, the victim, “C” (name omitted from public record), after their relationship ended. Evidence produced during trial showed that B repeatedly sought to reconnect with C over the course of five months after the end of their relationship, which caused great anxiety and distress to C. Under Section 152 of the Portuguese Penal Code, domestic violence occurs whenever a defendant inflicts physical or psychological harm to a romantic partner or former partner. The District Court (Tribunal da Comarca) found the B not guilty of domestic violence. The Public Prosecutor appealed, and the Appellate Court (Tribunal da Relação) affirmed the District Court’s decision, holding that, although C did suffer anxiety from the attempts at contact made by B, B’s conduct was never humiliating, provocative, offensive or threatening, and therefore did not qualify as a crime of domestic violence.



Legislation

Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.



Código Civil (Civil Code) (2010)

Forced and early marriage, Gender discrimination, LGBTIQ

Section 1577 of the Portuguese Civil Code provides for the right of marriage, regardless of gender, to anyone over the age of 16, provided that whoever wishes to marry before the age of 18 must also present an authorization of their parents or legal guardians. The Civil Code also provides that marriage requires free will of both parties, and therefore any marriage that is performed without the will of both spouses is void.



Código do Trabalho (Lei n.º 7/2009) (2018)

Employment discrimination, Gender discrimination, Sexual harassment

Section 29 of the Portugese Labor Law ensures equal opportunity in labor and and prevents gender discrimination. The Code also guarantees maternity and paternity leave, bans harassment, establishes universal preschool for children until the age of five, and requires children to attend school.



Constituição da República Portugal (Constitution of the Portugese Republic) (1976)

Gender discrimination, LGBTIQ

The Portuguese Constitution in Section 9 provides that it is the duty of the State to promote equality among men and women.  Section 13 further provides that no one shall be privileged or discriminated against for birth, gender, race, language, place of origin, religion, political or ideological conditions, social or economic status, or sexual orientation.



Reference Guides

Judicial System of Portugal (2019)

Gender discrimination

Portugal has a code-based civil law justice system, and its judiciary is divided between civil and administrative courts. The civil courts, which have jurisdiction over gender discrimination matters, are structured in a hierarchy. The lowest level civil court is the District Court (the Tribunal Judicial de Comarca), which is subordinate to the Appellate Court (the Tribunal da Relação), which is subordinate to the Superior Court of Justice (the Superior Tribunal de Justiça). The Judicial District Courts have the broadest jurisdiction, and issues initial judgments on the cases brought before it, after determining the findings of fact and rulings of law. Parties may appeal to the appropriate Appellate Court, which may review the findings of fact and rulings of law. Decisions rendered by the Appellate Court are final with respect to the findings of fact. However, should there still be dispute about the rulings of law, parties may file a final appeal before the Superior Court of Justice, and any judgment issued by the Superior Court of Justice is final and non-appealable.