2022

DOI: https://doi.org/10.31178/AUBD.2022.09

Abstract: This article addresses a sensitive issue for Romanian society, namely the differences between the role of consent in cases involving the crime of sexual intercourse with a minor and in cases involving the crime of rape. Following a European Court of Human Rights (ECHR) ruling in the case of M.G.C. v. Romania and an assessment by the Judicial Inspection, a legislative initiative seeks to address the shortcomings of the current system. Is it capable of resolving all the difficulties arising from the legal classification of certain acts committed against minors as sexual intercourse with a minor or rape? Does this draft law correctly identify the problem in the legislation (or in case law)? These are the questions I will attempt to answer in this study. Building on the identified problems and legislative solutions from other countries, and after analyzing the concept of “consent” within the framework of the offenses of sexual intercourse with a minor and rape, I will propose a more flexible and simpler regulatory framework designed to facilitate the application of the law by the courts. This text is neither a comparison of offenses nor an in-depth study of them. Rather, it represents a first step in examining the concept of “consent” within the context of sexual offenses. The author hopes that this debate will continue, as this paper alone cannot resolve all issues regarding the consent of minors in cases of sexual offenses. As we shall see, however, no legislative proposal can do so.

Keywords: rape, sexual intercourse with a minor, consent, crimes against sexual freedom, M.G.C. v. Romania