Law 14.245/2021 and its implications on criminal evidence: relevance, admissibility and protection against secondary victimization

Abstract

This article aims to examine the Law 14,245/2021, presented to ensure dignified treatment for victims and witnesses, especially in sexual offences. The protection is not limited to the duty of treatment imposed on the parties and the judge but advance towards evidence law by establishing an exclusionary rule related to the victim's private life, notably previous sexual history evidence. Based on the origin and purpose of Law 14,245/2021 and adopting a comparative approach to Anglo-American law with an analytical focus grounded in the deductive method, it is argued that the new provisions are similar, albeit incipient, to the so-called rape shield laws and, therefore, it allows the judge, depending on the needs of the specific case and within the matters of Law 14,245/2021, to require the parties in advance to describe the evidence and inform relevance and materiality or state the purpose for which it is offered. As a result, it may lead to the exclusion not only of irrelevant or immaterial evidence, but also if it tends to be misused, invites moral prejudice or wields influence based on gender stereotypes – in particular when destined to assess the credibility of victims and witnesses – scenarios that could generate unfair prejudice and compromise the accuracy of fact-finding.