Unele aspecte de detaliu privind infractiunea de hãrtuire sexualã
Detailed Aspects of the Sexual Harassment Offence

Summary/Abstract: The author discusses the offence of sexual harassment, recently introduced in the Romanian penal legislation by Law no. 61/2002. Due to the absence of jurisprudence in this field, the analysis is mainly theoretical- it examines some of the elements of the crime, such as: the juridical object, the subjects and the material element of the offence. In what regards the juridical object of the crime, the study first investigates the relationship between the general juridical object (i.e., the protection of the person) and the special juridical object (i.e., the protection of the person’s sexual life). Underlining the complex character of the special juridical object, the author distinguishes here between the main juridical object, represented by the fundamental social value protected by the legal norm- the freedom and sexual integrity of the person-, and the adjacent juridical object, which includes, according to the doctrine, social values such as: the psychical freedom of the individual, when sexual harassment is performed through threat (e.g., threatening with a salary cut in case the victim does not agree to the sexual requests); bodily integrity and health, when sexual harassment is committed through physical constraint; human dignity or the occurrence and maintenance of normal work relations. Furthermore, according to the author, this category of adjacent social values also includes: physical freedom, health (conditioning workplace modification on fulfilling the sexual requests of the employer), the life of the individual, his family relations, social relations and morale- especially when the act is committed in public, the exercise of the victim’s rights at the workplace (the right to professional education, the right to work, the right to promotion, the right to a fair wage). The study then turns to examine the active and passive subject of the offence. In what concerns the former, the legislator has expressly given it a certain statute, using the expression “a person who abuses the authority or influence resulting from her position at the workplace”. In other words, the active subject of the crime is a characterized individual- the civil servant, the employee or the person who exercises a liberal profession, if situated in a relationship of influence or authority over the passive subject, represented by a direct or indirect subordinate, indifferent of the place where the authority/influence is exerted. From the author’s viewpoint, the origin of the work relationship is irrelevant, and, by accepting the possibility of an extraprofessional exertion of authority/influence, the protection of the law has been extended to other social zones than the work field. The passive subject of the offence has generated controversy in the doctrine: is it necessary that he also be a characterized individual- i.e., an employee, under the authority/influence of the active subject?

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