Protection of children who are victims of domestic and family violence: conflicts between protective microsystems and judicial jurisdiction in light of Repetitive Theme No. 1,186 of the Superior Court of Justice

Abstract

The present article aims to analyze Special Appeal No. 2,015,598-PA, reported by Justice Ribeiro Dantas, Third Section, adjudicated on February 6, 2025, and published in the DJEN on February 13, 2025. In this case, the Superior Court of Justice established the understanding that the female gender condition is sufficient to justify the application of the Maria da Penha Law in situations of domestic and family violence, prevailing over age-related considerations. Specifically, the Court examined whether the female gender, regardless of whether the victim is a child or adolescent, is sufficient to trigger the application of Law No. 11,340/2006 in cases of domestic and family violence, thereby excluding the applicability of the Statute of the Child and Adolescent (Law No. 8,069/1990). The legislation, in fact, does not establish any age-related criteria for the application of the provisions set forth in said law, and the Court concluded that the victim’s age, by itself, does not disqualify the jurisdiction of specialized courts to adjudicate crimes committed against female victims. In light of the above, this study seeks to assess the impacts of the decision within the scope of women's protection policies, to present arguments regarding the vulnerability of women in contrast with age-based vulnerability, and to investigate how this binding precedent affects the jurisdictional allocation between specialized courts, in accordance with Article 23 of Law No. 13,431/2017, which established the system for ensuring the rights of children and adolescents who are victims or witnesses of violence.