Law’s Lolita Paradox: Translating ‘Childhood’ In Statutory Rape Jurisprudence

Abstract

This article addresses how normative views about ‘childhood’ are translated into statutory rape legislation and court judgments at the highest legal level in Brazil, in the Federal Supreme Court. The article draws on literature on the sociology of childhood to trace how courts translate societal narratives in the construction of agency, vulnerability and victimhood with regard to children and sexuality. Analysing historical and contemporary statutory rape legislation and Federal Supreme Court decisions over a 20-year period, we argue that the legal subjecthood of child victims of sexual crimes is constructed at the intersection of prevailing norms in society about childhood and moralising discourses about women’s sexuality. Deviating from norms about childhood results in the prominence of women’s sexuality and sexual desire in legal and judicial argumentation, situating children in a legal-semantic space in which they are simultaneously denied the agency that characterises adulthood and the special protection that compensates for this lack of agency in childhood protection laws. We refer to this legal situation and friction as the ‘Lolita paradox’ of statutory rape jurisprudence.