ALIENAÇÃO PARENTAL E DENÚNCIAS DE ABUSO SEXUAL: OS RISCOS DA MÁ APLICAÇÃO DA LEI 12.318/10 À PROTEÇÃO DA CRIANÇA E DO ADOLESCENTE VÍTIMA DO ABUSO

Abstract

The article analyzes Law 12.318/10, which deals with acts of parental alienation, as well as how it has been applied, especially when it is related to the reporting of sexual abuse of minors committed by family members. The objective of this study is to verify if there are risks in the misapplication of Law 12.318/10, denounced from recent reports, to the protection of children and adolescents, and what this danger would consist of. For this purpose, a bibliographical review on parental alienation and intrafamilial sexual abuse was used as a methodology, as well as a qualitative analysis of judgments of the Court of Justice of São Paulo on the subject. From the analysis of existing controversies in the application of the parental alienation law when there is a complaint of sexual abuse, namely the use of the law as an instrument of defense of the accused of intrafamilial sexual violence, the probative difficulty due to the peculiarities of this type of abuse, as well as the existing dilemmas at the time of the analysis of the case with regard to whether or not it was a false complaint, it was concluded that the poor application of Law 12.318/10 can represent a danger to the child and adolescent, because, if the court interprets the abuse that actually occurred as a false report, one of the sanctions to which the child or adolescent will be subject is the reversal of custody and, therefore, assignment of custody of the child under 18 to the abuser.