Special Affidavit and Sexual Violence Against Children: Aspects from the Witness´ Psychology

Abstract

Current paper analyzes the witness of the child or adolescent who has been the victim of sexual violence through the paradigm of the protection of the rights of children and personality rights. The above is achieved through an analogy with special affidavit employed in Brazil and normed by Law 13,431/2017 and its repercussions on the criminal sentence. Protection level given through the Brazilian penal system during the retrieval of children´s witness during the processual phase within the context of children and adolescent victims was analyzed. It aims at minimizing pain or secondary victimization, such as memory distortions caused by the state apparatus when probing the crimes. In fact, they may jeopardize the accuracy of penal proofs and may result in equivocated condemnations. Current research has been foregrounded on constitutional and infra-constitutional legislation to verify existing flaws in children´s testimony and thus the influence on the judge´s decision. Recent studies in Human Sciences (Neurology, Psychology, Social Sciences, Pedagogy) have questioned the robustness of the victims´ affidavits, especially due to false memories which jeopardize the exactness of proofs. Research methodology is based on multidisciplinary stance of Law, coupled to different areas such as Psychology of the witness and Cognitive Psychology. The deductive method is employed through bibliographic research as from an interpretative analytic methodology, with an investigation on the general legislation structure composed of several international contracts, laws and norms that involved the protection system for children. This is highly important to reach the aims propsed and thus the conclusions. We would like to characterize distortions of memory in prisons and unjust condemnations, and insist on the need for reinforcement of the criterion on the accused´s presumed constitutional innocence.