Consimțământul minorului în cazul infracțiunii de viol
The Consent of a Minor in Case of Rape

Summary/Abstract: In the context of divergent views and a non-unitary judicial practice with regards to the legal classification of criminal acts involving sexual intercourse with a minor, in the case of aggravated rape or in the case of sexual intercourse with a minor, along with Romania’s conviction by the European Court of Human Rights for violating the provisions of Article 3 of the European Convention on Human Rights, and the monitoring imposed by the Committee of Ministers of the European Council on the measures taken by the Romanian authorities for implementing an effective criminal law system that punishes all forms of rape and sexual abuse of children, we find that it would be necessary and useful to have a study on the matter of the existence and validity of the consent of the minor victim in cases of sexual offenses. The issue of the age limit up to which a criminal offense meets the typical elements of the rape, and from which the criminal offense can be qualified as sexual intercourse with a minor, has provoked a lot of debate within the doctrine. In the judicial practice, the delimitation between rape and sexual intercourse with a minor is made on a case-by-case basis, depending on the actual capacity of the minor to understand the meaning of a sexual act. In reality, only few courts of law resort to a psychiatric evaluation of a minor who is a victim of sexual assault, a circumstance that determines a non-unitary judicial practice and unfair resolutions for the parties. Taking into account these practical difficulties, in view of Romania’s conviction by the European Court of Human Rights, as well as the legislative changes happening in other Western states, we consider that a legislative intervention, either in criminal proceedings, to regulate the obligation to perform a psychiatric evaluation of the minor victim of a crime of a sexual nature, or in criminal matters, in the sense of regulating a legal age limit, based on which to distinguish between the rape and sexual intercourse with a minor, such as the age of 15, is urgently needed, in the context of the multiplication of sexual offenses where minors are victims.

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