THE CRIMINALIZATION OF HOMOPHOBIA BY THE STF: EXTENSIVE INTERPRETATION OR ANALOGY IN DISFAVOR OF THE DEFENDANT Renata Rocha Gircis Calixto, Luciano Pereira de Souza

Abstract

This article deals with the decisions of the STF in two concentrated constitutional review actions tried in 2019 that criminalized homophobia as a form of racism until a specific criminal law on the subject is enacted. The objective of the research was to examine the winning vote and the STF decision in ADO 26 in light of the constitutional criminal principle of strict legality, with regard to the prohibition of the use of analogy in malam partem. The work employed the technique of bibliographic and documentary research, adopting a positivist approach, without delving into the merits of the moral issue involving this form of prejudice. The method used was dialogic, contrasting opinions gathered in doctrine and jurisprudence. It was found that, despite the Rapporteur Minister Celso de Mello and the winning majority recognizing that the decision, in the form in which it was adopted, did not employ analogy to the detriment of the defendant, however, the defeated minority viewed the classification proposed in the decision as capable of challenging the principle of criminal legality, warning of the need for legislative elaboration.