Different Legal Classification of Crimes Regarding Sexual Life vs. Uniform Interpretation and Implementation. Comparative Aspects of the New Criminal Code

• Author: Mihail -Silviu Pocora, Monica Pocora
• Pages: 350-353

European Integration - Realities and Perspectives

2010

350

Different Legal Classification of Crimes Regarding Sexual Life vs. Uniform

Interpretation and Implementation. Comparative Aspects of the New

Criminal Code

Mihail-Silviu Pocora

1

, Monica Pocora

2

1

Master Student, Hyperion University of Bucharest

2

Danubius University of Galati, Faculty of Law, monicapocora@univ-danubius.ro

Abstract: Sexual freedom, being one of the individual freedom, is protected by law whenever is violated a nd no matter what

way take place, but controversy and lack of unanimous interpretation occur once the legal status of infrinfed rule and

therefore the individual sentence. In this sense, we tried to highlight some aspects regards to the legal boundaries

classification, and the new elements brought by the new Criminal code.

Keywords: sexual freedom; sexual offenses; pedophilia; morality; legality

Title II, Chapter III of the current Criminal Code, entitled „Crimes against sexual life” includes rape

crime, sexual intercourse with a minor, seduction, sexual perversion, sexual corruption, incest and

sexual harassment. Considering that some offenses have the minor, as passive subject, they may be

associated with another term, called „pedophilia”.

Title I, Chapter VII of the new Criminal Code (Law no. 286/2009), entitled „Crimes against sexual

freedom and integrity”, includes offences such rape, sexual assault, sexual intercourse with a minor,

sexual corruption of minors, recruitment of minors for sexual purposes, sexual harassment. Therefore,

is apparent that the crimes of seduction and incest will no longer find meaning under the new Criminal

Code, the crime of incest is absorbed by aggravating version of rape – „when the victim is a relative in

direct line, brother or sister”, this new law giving priority to a new offense, respective, the recruitment

of minors for sexual purposes.

In courts practice, have held contrary views on the legal classification of rape, and the crime of incest

in perfect concourse, in case of sexual relation with a person of different sex, family member, with

which author is relative in direct line, brother or sister, made it through coercition or taking advantage

of her inability to defend or to express their will. Not having a single viewpoint in this regard, some

courts have held that the act constitutes only the rape crime, considering that the incest crime is

absorbed in the worsening situation

relating to the situation when

„the rape victim is a family

member”. Other courts, have held that such an act, committed by the author on a family member,

which is relative in direct line, brother or sister, constitutes both rape crime and incest in the perfect

concourse.

In this regard, the High Court of Cassation and Justice upheld an recourse in law interest, by decision

no. 2/2005 (Recourse in law interest, no. 27/09/2005).