SANCŢIONAREA EXPLOATĂRII SEXUALE PRIN IMAGINI – DEZIDERATUL PROTECŢIEI PENALE ŞI CARENŢELE INCRIMINĂRII
SANCTIONING SEXUAL EXPLOITATION THROUGH IMAGES – THE DESIRABILITY OF CRIMINAL PROTECTION AND THE SHORTCOMINGS OF CRIMINALISATION

Summary/Abstract: Following a legislative process initiated at the end of 2019 (pl-x nr. 606/2019), which was implemented through the enforcement of law no. 171/2023, the offense of violation of privacy, as provided by article 226 of the criminal code, was amended by the introduction of three new paragraphs - paragraphs (21), (22), and (41) - as well as by reconfiguring the scope of the circumstances that remove the elements of crime, within the introductory part of paragraph (4). The legislative intent was to create an appropriate mechanism for the protection of victims of this particular form of sexual and cyber violence, known as revenge porn, using the repressive instruments of criminal law. Analyzing the legislative process of the project, prima facie, it can be observed that, although the completion of this process took approximately three and a half years, the criminal policy choice regulating this new criminalization was welcomed during parliamentary debates as an „alignment with a select group of states that have done the same in recent years”. Therefore, the purpose of this article is to formulate critical observations pertaining to the manner, flawed in our opinion, in which the objective and subjective elements of crime were transposed normatively in relation to the desired social protection ratio legis. Specifically, it failed to include the particular element of this type of act, namely the subjective position of the perpetrator. Finally, it should be noted that, for the purpose of this article, the terms sexual exploitation through images, revenge porn, non-consensual pornography, and revenge porn will be used interchangeably.

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