O controle do risco como razão para a imputação objetiva na heterocolocação em risco consentida: a responsabilidade criminal do condutor embriagado pelo homicídio do caroneiro consenciente

Abstract

This thesis investigates the criminal liability of the drunk driver who, under the victim´s consent, transports her in a car and causes her death in an accident caused by him. The objective is to analyze if the victim´s consent about the prohibited risk that is controlled by the agent influences the objective imputation of the fact to him. As a hypothesis, it sustains that the objective imputation to the agent, in this form of consented hetero-endangerment by the victim, is an appropriate dogmatic response to drive criminal law towards the accomplishment of the Brazilian criminal policy concerning drivers that conduce vehicle under the influence of alcohol and cause harm to people. For this purpose, through exploratory research and bibliographical review, the thesis studies whether the hitchhiker´s autonomy, including in the context of his vulnerability derived from the excessive alcohol consumption, allows attributing him the responsibility of his own death. After, it examines the State´s duty to protect people, evaluating the paternalism of the State in protecting individuals who voluntarily allow that other people put them in prohibited risk. In continuation, it assesses the possibility of the victim´s will interfering in the fulfillment of the functions of criminal law, namely those concerning the protection of legal interests which cannot be resigned by its titular, as life. Then, under the theory of objective imputation, it examines dogmatic proposals to address the issue: consent, attribution of the result to the victim's responsibility, the victim's actions at his own risk, equating hetero-endangerment with self-endangerment and risk control. The research concludes that the risk control criterion is adequate to support the objective imputation of the manslaughter to the drunk driver, both in the case of the victim insisting on the ride, initially denied by the driver because he had consumed alcohol, and in the case of the victim accepting the spontaneous offer of transport by the drunk driver. The results show that de victim´s consent, regardless being aware about the driver´s drunkenness, does not exclude the objective imputation in relation to him.