CRIMINAL AND CRIMINOLOGICAL ASPECTS OF INCEST
CRIMINAL AND CRIMINOLOGICAL ASPECTS OF INCEST

Summary/Abstract: Through this paper we propose an analysis of the crime of incest, as it is currently regulated in the Romanian Criminal Code by comparison with the old regulation, highlighting certain relevant aspects of this crime, as well as problems that may arise in the interpretation and application of the incest incrimination rule. As we know, the crime of incest has generated several discussions in the literature. Divergent views focused both on how to regulate this crime and on the idea of decriminalizing consensual incest. Last but not least, given the evolution over time of the norm of incrimination of incest, it seems that the legislator was not very clear about the social value protected by this crime. In this regard, we recall that in the draft of the new Criminal Code, incest was no longer provided as an independent crime, it being considered that it is sufficient to incriminate the incest committed by coercion or by making the victim unable to defend himself or to express his will or taking advantage of this state, as an aggravated variant of the crime of rape. Eventually, the current Criminal Code came out of the parliamentary procedure, keeping the crime of incest in crimes against the family, but with certain modifications compared to the old Criminal Code, in the sense of restricting the scope of this crime only in the case of consensual sexual intercourse and reducing the limits of punishment. Also, although the Explanatory Memorandum of the new Criminal Code states that this crime protects the morality of family relationships, we note that the legislator included in the rule of incrimination only sexual intercourse, excluding oral sex or anal intercourse – vaginal or anal penetration or any other acts of a sexual nature, as alternative normative ways of accomplishing the material element of this crime.

• Details
• Contents