Semnificaţia termenului „consimţit” din cadrul infracţiunii de incest în contextul modificărilor aduse de Legea nr. 217/2023
The meaning of the term “consented” in the crime of incest following the amendments brought by Law no. 217/2023

Summary/Abstract: The article analyses the issue of the legal classification of consensual sexual acts perpetrated between relatives in direct line or brothers and sisters, following the amendments to the Criminal Code by Law 217/2023. Thus, due to the introduction of a new way of perpetrating incest, which no longer consists only in sexual intercourse, and to an apparent change in the legislator’s approach to rape committed against minors, some legal scholars have already pointed out that an older solution of the High Court of Cassation and Justice, which had concluded that rape and incest were concurrent offenses under the previous Criminal Code, is applicable. By outlining the evolution of the rules in this area and clarifying the criminal legislator’s conception of the notion of “consent”, the authors reach the opposite conclusion, according to which the incidence of rape, even in the absence of coercion, the victim’s inability to defend herself or express her will, or the commission of the act by taking advantage of this state, makes it impossible to establish the crime of incest.

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