INTRODUCTION ....................................................................................................................

2
I. General aspects regarding crimes against sexual freedom and integrity ........................3
II. The content and analysis of the constitutive elements of the crime of rape ..................6
II.1. The legal content and characterization of the crime of rape ...................................6
II.2. Pre-existing conditions of the crime of rape ..............................................................6
III. Constitutive content of the crime of rape ........................................................................7
III.1. The objective side .......................................................................................................7
III.2. The subjective side ...................................................................................................10
V. Forms of the crime of rape and the sanctioning regime ................................................15
V.1. Forms of the crime of rape. .......................................................................................16
V.2. Sanctioning regime .....................................................................................................17
CONCLUSIONS ....................................................................................................................18
BIBLIOGRAPHY ..................................................................................................................19

1
INTRODUCTION

From sexual relations uncontrolled by the community, characteristic of primitive

societies, to relations regulated by tradition or morals and then by law, a long road has been
covered determined by property relations and the interest of communities to restrict or not
certain behaviors.
The history of attitudes and sanctions regarding rape in different eras has evolved
according to the conceptions of each people, not allowing a unitary treatment of it.
However, in relation to the current legal regulations, several more important moments
can be noted that constitute stages of the contemporary legal construction, stages that
represented stages of their progress or regression.
Rape, considered one of the most serious crimes against a person, constituting the
most brutal violation of his sexual freedom, presupposes the existence of a sexual act of any
nature, consummated or attempted.
In the last decades, there has been a social transparency, but also a greater
permissiveness regarding the ways of manifesting the sexual instinct, giving up more and
more the use of a duplicitous language in sexual matters.
Sexual inversions were a widespread practice in antiquity, being severely repressed at
the initiative of the church in the Middle Ages.
Today, relationships between people of the same sex are decriminalized in most
civilized states, some of which grant the right to marriage to people in this situation.
Sexual perversions seen as abnormalities of sexual behavior often psychologically
based (psychological incapacity of a heterosexual relationship) or originating in the
dissociation of the biological and social (affective cultural) substrate of sexuality constitute,
along with AIDS and drug use, one of the three demons of modern life in a permanent
amplification.
Against the background of the amendment of the text criminalizing the crime of rape,
all these divisions of the forms of manifestation of the human sexual instinct retain only their
theoretical and exemplary value. By using the phrase "sexual act of any nature" the legislator
intended to cover in a broad sense all the known forms of manifestation of sexuality, as well
as those whose expression could not even be classified.

I. General aspects regarding crimes against sexual freedom and integrity

2
 Sexual life is a very important aspect of a person's life, in whose development and
normal manifestation both individuals and society as a whole are interested. The normal
pursuit of a person's sexual life presupposes that the sexual relations in which he engages do
not endanger his life, physical integrity, physical and mental health, freedom and dignity. In
order to satisfy these interests, the sexual life of the person must be carried out according to
certain norms, the observance of which ensures the defense of some moral and legal values of
capital importance: the freedom and morality of the sexual life of the person.1
The individual freedom of each human being refers, among other things, to his right to
decide on his own sexual life, which is an absolute right, the exercise of which is limited only
by the need to respect the basic moral norms, the rules of coexistence, to observe The social
inviolability of the person (this is actually a corollary of the sexual freedom of the person: just
as the person has the right to engage in sexual relations in order to enter into such relations).
The law guarantees the person sexual freedom, but also requires that this freedom not be
abused.
Sexual offenses are such violations of the freedom and morality of a person's sexual
life with serious consequences.
on the injured person (not only physically, but also psychologically, which has a profound
impact on his development, his further development) and on his family.
All these aspects explain and justify the special place, among crimes against the
person, that is occupied by crimes related to sexual life, characterized by the specifics of
social values that are the object of legal protection: the freedom and sexual inviolability of the
Person. and the morality of sex life. . Among them, rape stands out as a typical sexual crime.
Rape is the most brutal violation of sexual freedom, that important characteristic of
human personality. The sexual act committed under duress affects the sexual inviolability,
physical inviolability, dignity and freedom of the person and can have serious consequences:2
• Physical consequences: injury to bodily integrity (may even endanger the normal
physical development of the injured person), health (ex.: sexually transmitted diseases) or
even the death of the person.
• Psychological consequences: rape can endanger the victim's normal psychological
development and moral balance. The victim suffers an emotional crisis and has strong

1
G. Bodoroncea, V. Cioclei et al., Criminal Code. Comment on articles art. 1-446 , Ed. CH Beck, Bucharest,
2014, p. 452.
2
Valerian Cioclei, Cristina Rotaru, Andra-Roxana Trandafir (Ilie), Criminal Law. The special part. Seminar
notebook. Edition 4 , Ed. Beck, Bucharest, 2021, p.143,

3
feelings of degradation and disgust, powerless anger, guilt, shame, but above all an intense
feeling of fear, generalized, not directed towards a concrete object.
This trauma presents lasting psychological symptoms (eg: states of panic, denial,
apathy and depression; sexual problems; decreased self-confidence; alcohol and drug abuse,
even suicide).
• Social consequences: withdrawal and social isolation; as a result of rape, unwanted
pregnancies and communication problems may occur in the family, thus seriously affecting
relationships regarding filiation and family.
The social danger of the crime of rape therefore consists primarily in the direct
damage it causes to the victim individually, that is, depending on his characteristics and
interests, the social danger of this crime has another side: the serious social consequences.
The normal development of social relations is the basis of society's existence, its
survival. The normality of these relationships cannot be understood without respect for
inalienable qualities and human rights, including freedom. And an important aspect of a
person's freedom is sexual freedom. The violation of sexual freedom creates a state of social
insecurity, an imbalance that cancels the normality of the development of social relations in
relation to sexual life and can thus endanger the very existence of society. 3
The picture of the social danger of this crime would not be complete without
criminological aspects:
- the commission of the crime of rape is the expression of a deeply backward
conscience, a personality marked by serious moral defects and an extremely dangerous
aggression.
- rape is the sexualized form of exercising power and control and does not
necessarily represent the need to satisfy carnal desires, or at least it is not the only one. Rape
has deep roots in patriarchal cultures, which explains the predominance of women as rape
victims, although the passive subject of the crime of rape can be either a woman or a man.
During the years of colonialism and the Pacific War, Japanese soldiers forced Korean,
Chinese and Taiwanese women into prostitution (so-called "comfort women"). In the nine-
month Bengali-Pakistani war (1971), Pakistani soldiers raped between 200,000 and 400,000
Bengali women. The war in Vietnam and the war in Yugoslavia are notorious for rape and
sexual torture. In principle, armed conflicts are usually accompanied by sexual violence.
Rapes during war are not the result of combatants' lack of sexual activity (nor are they
caused solely by this fact); Rape is also committed when soldiers satisfy their sexual needs by
Adrian-Catalin Tiganoaia, Criminal Law. Special part I , Ed.CH Beck, Bucharest, 2021, p.144
3

4
using the services of prostitutes or having sexual relations with consenting women. Rape in
war first of all satisfies the social needs of the aggressor, who thereby secures and manifests
his own masculinity and power (it is also about asserting and exercising control, about
violence): in war he is constantly confronted with fighters with a sense of fear and impotence,
the rapes "help" him regain his self-confidence and overcome his fear.
Moreover, rape also serves to demoralize the adversary, who is implicitly told that he
cannot protect his citizens (in the case of a state). However, the worst form of this
demoralization will occur at the level of the individual: he will feel unable to protect his
family. Therefore, military strategies deliberately include the use of this "weapon" by
indirectly supporting and tolerating rape.
Because of their particularly serious consequences, wartime rape (often on the scale of
mass rape) was outraged at the Fourth Geneva Conference on the Rights of Peoples in 1949:
"Women must be protected from any attack on their honor and especially from rape, forced
prostitution or any inappropriate and dishonorable activity." Of course, at first these
provisions did not change the prevalence of rape during the war. Gradually, however, rape
under these conditions was recognized as a war crime, with all the consequences that such the
act assumes (but only after the International Court of Justice in Den Haag has ruled in favor of
some of the perpetrators).4
Therefore, due to the particularly serious consequences, the crime of rape is the most
serious crime in the group of crimes related to sexual life, the most serious form of violation
of social relations and ethical values related to sexual life in Romanian legislation. system.

II. The content and analysis of the constitutive elements of the crime of rape

II.1. The legal content and characterization of the crime of rape

It is the crime that consists of sexual intercourse, oral or anal intercourse with a person
of a different sex or of the same sex, committed by coercion, making it impossible to defend
oneself or to express one's will or taking advantage of this state [art. 218 para. (1) c.pen.];
It constitutes the assimilated form of rape, any other act of vaginal or anal penetration
of me, a person of a different sex or of the same sex. committed by coercion, impossibility to

V. Dobrinoiu, MA Hotca s.a., New Criminal Code Annotated. The special part, ed. 3rd, revised and added , Ed.
4

Universul Juridic, Bucharest, 2016, pp. 162-163.

5
defend oneself or to express one's will or taking advantage of this condition. 218 para. (2) c.
pen.
Both for the standard form and for the assimilated one, the criminal action is initiated
upon the prior complaint of the injured person; it is not possible to reconcile the parties, the
removal of the perpetrator's criminal liability being possible only by withdrawing the prior
complaint; according to art, 157 par. (5) Penal Code, if the injured person died before the
expiration of the term provided by law for filing the complaint, the criminal action can be
initiated ex officio.
The aggravated version of the offense will be retained; 5a) if the victim is in the care,
protection, education, guard or treatment of the perpetrator; (b) if the victim is a direct
relative, brother or sister; (c) if the victim has not reached the age of 18; (d) if the act was
committed for the purpose of producing pornographic materials; e) if the deed resulted in
bodily injury: (f) if the deed was committed by two or more people together; (g) if the rape
resulted in the death of the victim.

II.2. The pre-existing conditions of the crime of rape

The special legal object: it is constituted by the social relations related to a person's
sexual freedom. There can also be a secondary legal object consisting of social relations that
affect the life, physical or mental integrity of the person.
b) The material object refers to the body of the living person. If a person knowingly
maintains sexual relations with a deceased person, the crime of desecrating a corpse or a
grave is punishable (art. 383 of the Penal Code).
c) Subjects of the crime
a) The active subject represents any natural person (non-circumstance) with criminal
capacity who can be the author of the crime of rape (in the basic form).
Criminal involvement in the usual form is possible in the form of previous instigation
or complicity and the commission of the crime by two or more people (co-perpetrator or
complicity) is a serious variant of rape.
Regarding co-authorship, it should be emphasized that in complex crimes co-
authorship also exists when one/some of the participants commits part of the criminal act and

5
G. Antoniu, T. Toader (coord.), Explanations of the New Penal Code, vol. III (art. 188-256), Ed. Universul
Juridic, Bucharest, 2015, p. 185.

6
others/others the other part of it; thus, if one of the perpetrators commits acts of coercion and
the other perpetuates the sexual act of penetration, the existence of coauthorship remains.6
b) the passive subject is any living natural person, regardless of gender, rape is a crime
with a unique and specific passive subject.
The existence of previous personal relationships between the victim and the
perpetrator does not exclude the commission of the crime of rape. The passive subject of rape
may commit an act of self-defense that kills or injures the rapist.
The large number of passive subjects practically implies the maintenance of a contest
of crimes and not the maintenance of an aggravated version of the crime; the commission of
the crime in the form of the legal unit of the continued crime is not excluded.

III. Constitutive content of the crime of rape

III.1. The objective side

a) The material element consists in maintaining, through coercion, a sexual act, an oral or anal
sexual act, or a vaginal or anal penetration with a person of the opposite sex or of the same
sex, which make it impossible to defend or defend and express will or exploit this state.
The crime is committed only by an act, not by an omission, it was correctly
established in the doctrine that there is only one act of rape consisting of two acts when the
accused maintains two forced sexual relations with the victim in a short time (unity collective
natural), because in this case a possible interruption. between successive acts is natural and
depends on the specifics of the crime in question.
Pen code solved the crime of rape starting from the idea of an act of penetration, so
that the content of this crime will include:7
1. sexual relations: the act of joining the male sexual organ with the female one;
2. oral or anal sexual relations, either between persons of the same sex (homosexual sexual
acts), or between persons of the opposite sex (heterosexual sexual acts);
3. acts of vaginal or anal penetration, regardless of how they are performed (eg, by inserting
objects, fingers, fingers, forcing sexual intercourse with an animal, etc.); it does not matter
whether acts of vaginal or anal penetration were committed by the perpetrator, by the

6
M. Udroiu, Criminal law. Special part: Syntheses and Grids, ed. 2nd revised and added , Ed. CH Beck,
Bucharest, 2015, p. 152.
7
. Bodoroncea, V. Cioclei et al., Criminal Code. Comment on articles art. 1-446 , Ed. CH Beck, Bucharest, 2014,
p. 452.

7
perpetrator using an animal or by coercing the victim to do so, therefore acts of sexual
penetration can be committed not only through the male genital organ, but also in other ways.
Penetration acts can be performed by the attacker on the bound victim, either by the
bound person on the attacker, or by the bound person on another person, or by an animal on
the bound person;
If sexual acts involving penetration are performed at the same time. In addition to acts
without penetration, the entire criminal act must be considered the crime of rape. in the style
of. 219 para. (4) c. pen.;
Demands that the sexual act, the oral or anal act or the act of vaginal or anal
penetration be performed without the consent of the person through coercion [physical or
mental (threat)] that makes defense or expression impossible.
The physical or psychological coercion must be effective before or concurrently with
the rape and result in the elimination or reduction of the victim's resistance; coercion is most
often objectified in judicial practice in acts of violence or threats; the existence of coercion is
recognized specifically and fundamentally with reference to the resilience of the victim; this
compulsion does not have to be irresistible (for example, the act of performing oral sex on a
victim who risks being abandoned in a field in winter, in an area where wolves have been
frequently reported, if she does not give in to the perpetrator's advances).8
Coercive measures need not always show evidence of the victim's physical resistance
to the acts of coercion; In this sense, the European Court of Justice in the case of Tsonyo
Tsonev v. Bulgaria 9pointed out that any rigid approach to sexual crimes, such as requiring
proof of physical resistance in all cases, involves certain risks and thus prevents unpunished
rape the effective protection of the sexual autonomy of a people. By current standards,
Member States have an essentially positive obligation under Articles 3 and 8 of the European
Convention to sanction and prosecute! any sexual act and the consent of the victim, even
without physical resistance. The existence of the passive subject's consent does not constitute
a justifying reason, even if the requirements of art. 21 Penal Code are met, but a case that
removes the objective character of the act when it is found that it was validly expressed. ,
current and specific and it is worth noting, however, that the error leads to the existence of
consent, the elimination of the subjective typicality of the act and not its imputability.
The action is also typical when the victim, initially consenting to the sexual act/sexual
act, changes his mind after the first moment of penetration and before the sexual act/sexual

G. Bodoroncea, V. Cioclei et al., op.cit .p.184

8

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-156855%22 ]}, last accessed on 27.01.2022

9

8
act ends, and the rapist continues the sexual activity despite the coercive resistance of the
victim.
The victim's inability to defend themselves or express their will may be pre-existing
(when the abuser takes advantage of this condition) or the result of the abuser's or another
participant's action (when the victim is placed in this condition). the purpose of the rape) (for
example, if the rape takes place on a sleeping child while sedated or on a person suffering
from a mental illness that interferes with the correct presentation of the facts).10
If the rape is profitably committed through the victim's inability to defend herself or to
express her will, the individualization of the punishment cannot be retained in the aggravating
legal circumstance according to Art. 77 hf c) Penal Code, because the same circumstance can
also be found in the content of the pregnancy norm:
Rape in a similar form or form, committed by coercion, is naturally absorbed the
crime of unlawful deprivation of liberty (art. 205 Criminal Code) for the duration necessary to
commit the crime, retains the legal recognition of the crime of threat (art. 206 Criminal Code)
or, as the case may be, of the crime of hitting or other violence (art. 193 Penal Code), because
violence is a complex crime committed through or moral coercion; if it cannot be proven that
the assumed crime, i.e. coercion, was committed, the typical character of the crime is not
retained.
Referring to the basic or assimilated form of the crime, it will not fall within the
notion of coercion and implicitly in the legal complexities of the crime of harming society,
under the conditions in which art. 218 paragraph (3) letter e). c.pen. provides, as an
aggravated variant, the commission of a rape resulting in intentional bodily harm.
If the rape is committed by the perpetrator who takes advantage of the victim's
inability to defend himself or to express his will, recognition of the crime of unlawful
deprivation of liberty cannot be supported (art. 205 Criminal Code). , because this variant of
the material element does not necessarily imply deprivation of liberty; if the deprivation of
liberty precedes or continues for a substantial period of time after the subsequent coercive
sexual act and continues after the continuation of the coercive sexual act, the effective
concurrence of the crime of rape remains;
There is no crime of rape in the hypothesis in which the judicial authorities proceed,
under the conditions of art. 190 c.pen.P, without a person's consent, when conducting a
physical examination to discover objects that are the subject of a crime (for example,
searching for drugs hidden in a suspect's vagina).
G. Antoniu, T. Toader (coord.), op.cit .p.195.
10

9
 The existence of the crime of rape with the crime of sexual intercourse with a minor,
committed when the passive subject is unique, cannot be maintained; there may be such
competition between rape and sexual corruption of a minor (eg, rape is committed in the
presence of a minor under the age of 13 who observes a forced sexual act).
b) immediate follow-up: violation of the victim's freedom to decide for himself about the
maintenance of a sexual act;
c) the causal link: it results, in principle, from the materiality of the fact (ex re); for the
aggravated variants committed with praeterintention, the causal link must be proven
[art. 218 para. (3) fit. e) and blueberry. (4) c. pen.].

III.2. The subjective side

There is a subjective side if there is direct intention and the type or assimilated form of
the mobile or the purpose with which the criminal activity was carried out is not important;
these can be taken into account by the court when individualizing the punishment, and
committing the act for the purpose of producing pornographic materials constitutes the
aggravated version of the crime.

IV. The aggravating circumstances of the crime of rape (paragraphs 3 and 4 of article
218)

A) Rape committed on a person who is in the care, protection, education, guard or treatment
of the perpetrator art. 218 para. (3) lit. a) c.pen
Art. 218 para. (3) lit. a) c.pen represents an aggravated variant of both the written form
and the assimilated form, including the persons who support the victim, regardless of their
form of employment.
- Protection of the perpetrator: the guardian, caretaker, birth parent or adopter of the victim;
- Education of the perpetrator: teacher;

10
- guarding criminals: persons who are tasked with guarding persons deprived of liberty in the
execution of a punishment, an educational measure involving deprivation of liberty or a
security measure;
- treatment of the offender: doctor, nurse, therapist, etc.;11
- it is necessary that the perpetrator really has one of the characteristics listed above, the
aggravated version cannot be maintained if the perpetrator unrealistically claims this
characteristic, and then the act of sexual penetration takes place under duress.

B) Rape committed on a direct relative, brother or sister | art. 218 para. (3) lit. b) c.pen.]
It represents an aggravated version of both the typical form and the assimilated form.
The rape must be committed by the perpetrator on a victim who has a special quality
provided by law: a direct relative in the ascending or descending line (e.g. the rape of a
grandfather on a grandson, a father on a daughter, etc.) or by a brother to a sister, therefore, in
all cases where the rape is committed against a family member, the aggravated version of the
offense is not preserved (for example, if the victim is the rapist's wife).
Pen code deviates from the previous jurisprudence (complaint in the interest of Law
no. 2/2005), which, as an aggravated variant, accuses incestuous acts supported by coercion
that make it impossible to defend or express the will or take advantage of it. the state of
affairs; compared to the regulatory route, it will not be possible to 1) maintain this aggravated
variant of the offense in competition with incest, which are alternative qualifications (apparent
qualification competition);
According to the Criminal Code, rape of a spouse or between cousins is primarily a
crime of rape in a standardized or equivalent form (unless another aggravated version of rape
is maintained).12
The special characteristic imposed by law of the offender-victim relationship has the
legal nature of a circumstance of personal individualization.
In the case of co-authorship, it is necessary that all co-authors have the special
characteristics required by law, because the personal circumstances of individualization do
not influence each other; however, if an accomplice has the special characteristic and the
other does not, the commission of the crime remains in the version of Art. 218 (3) letter b)
and 0 Penal Code. only the one who has the special quality is responsible, the other co-author

Valerian Cioclei, Cristina Rotaru, Andra-Roxana Trandafir (Ilie), op.cit .p.165

11

M. Udroiu, op.cit .p.174

12

11
must answer in the version provided by Art. 6. 218 paragraph (3) letter 1) v.Stift. (the act is
committed by two people together).
In the hypothesis that only the author has a special quality, not the instigator or his
accomplices, the latter are only responsible for complicity/incitement under the provisions of
art 218 paragraph (3) letter b) c.Pen. if they knew or foresaw the special quality of the author;
if it cannot be established that the participants knew the special position of the perpetrator,
they will be held liable for the basic form of the crime unless another circumstance is
established that leads to the establishment of another aggravating variant of the crime [for
example, in the case of accomplices simultaneously with those of Art. 218 para. (3) letter f)
cf.]
If only the instigator or accomplice has the special capacity provided by the law, and
not the perpetrator, then the latter is responsible for the commission of the basic form of the
crime if no other circumstance is decisive for establishing another aggravating variant of the
crime [for example; , if the perpetrator was simultaneously assisted by an accomplice in
committing the crime, the possibility of art. 218(3)(1) cf.]; the instigator/accomplice is also
liable for a criminal involvement in the perpetrator's act (with reference to the legal status
maintained against him) against the accessory character of the involvement; however, the
particular quality of the participant is taken into account when individualizing the punishment.

c). Rape committed on a minor. 218 para. (3) lit. c) c.pen.]

As a result of GEO No. 18/2016 constitutes an aggravated version of the crime of rape
against a minor, regardless of age (even if the minor is between 16 and 18 years old). It
represents an aggravated variant of the standard form or the assimilated form and the
perpetrator must have known at the time of the crime that the victim was under 18 years of
age;
The quality of being a victim of a minor is a personal circumstance of
individualization therefore, the perpetrator must have known at the time of committing the
crime that the victim has not yet reached the age of 18; the distinctions made in point 1.6.2. it
applies accordingly to the hypotheses of criminal involvement in this aggravated variant;
If the victim of the sexual act is a minor who is a direct relative, or if the act is
committed between minor brothers and sisters, both the aggravating version of art. 218
paragraph (3) letter b) c. .pen ., as well as the aggravating version of Art, 218 para. (3) lit. c)
c.pen, the error regarding the age of the victim leads to the removal of the aggravating

12
circumstance, is a real circumstance and affects the participants to the extent that they knew it
or foresaw it.
The sexual act remained in the form of an attempt, committed by coercion of the
victim who was 15 years old in an endless form. If, for committing the crime of rape, the
minor victim was deprived of liberty by several people together, and was subjected to
suffering during detention through the repeated use of physical violence, the constituent
elements.13
If the defendant committed the crime of raping a victim under the age of 15 whom he
knew and whose physical characteristics were normal for a child under the age of 15, the
secondary factual error regulations are not incidental.14
d) Rape committed for the purpose of producing pornographic materials [art. 218
para. (3) lit. d) c.pen.] - represents an aggravated version of both the standard form and the
assimilated form;
It is not necessary for the storage of this aggravated variant to have produced
pornographic material, they must be committed for the purpose of producing them for the
crime.
Pornographic materials are objects, engravings, photographs, holograms, drawings,
writings, prints, logos, publications, films, video and audio recordings, advertisements,
computer programs and applications, music and any other form of expression or suggestive of
sexual activity .
If you view pornographic products and materials involving minors, the crime of rape
is put in competition with the crime of child pornography.
Child pornography is any material that depicts a minor or an adult as a minor engaging
in explicit sexual behavior or that, while not depicting an actual person, impersonates a minor
engaging in such behavior, such as : B. any representation of the child's genitals for sexual
purposes Art. 374 paragraph (4) cf. pen).15

e.) Rape which resulted in premeditated bodily injury, art. 218 para. (3) lit. e) c. pen
Following rape, one of the consequences provided for in article 194, para. (1) c.pen..
or an infirmity, traumatic injury or bad health of a person that required more than 90 days of
medical care to heal; serious and permanent aesthetic damage; Cancellation; endangering the
person's life; therefore, in this serious variant of rape, bodily harm is accommodated.
13
M. Udroiu, op.cit .p.174
14
ICCJ .. criminal section, decision no. 1148/). 2009, www.scj.ro
15
M. Udroiu, op.cit .p.185

13
 If the perpetrator acted with the intention of causing the victim an infirmity, traumatic
injury or injury to the health of a person that required medical care for more than 90 days for
healing, serious and permanent aesthetic damage, the fight is punishable between rape in the
shape or form assimilated (unless another aggravated variant is retained) and the aggression
referred to aii. 194 para. (2) c.pen..
The defendant's attempt to rape the victim and after her warning that she would jump
out of the building's second floor window, she continues to be coerced into sexual intercourse
with threats, followed by the victim's exit from the window and her fall resulting in the
offense of bodily injury serious crime and violence, competing allies and no attempt to take
the crime of rape in an aggravated form, resulting in bodily harm to the victim. In such a case,
it must be concluded that the accused foresaw the possibility of the victim's death and
accepted that result, that is, he acted with the indirect intent to kill and not with the intent to
rape, which was overcome by the result, the fault of the accused victim.
f). Rape committed by two or more people together [art. 218 para. (3) lit. f) c. pen.
The perpetrators must be accomplices, followers or accomplices and maintaining this
aggravated variant does not require that all participants have had sexual relations / oral or anal
intercourse / acts of vaginal or anal penetration with the rape victim.
The aggravating legal circumstance of committing the act by three or more persons
together cannot be maintained, provided that art. 77 letter a) of the criminal code, but those
provided by art. 77 lit. d) c. pen. if a minor was also involved in the commission of the crime;
It is a real circumstance affecting previously the instigators and accomplices, so far as
they knew or foresaw it. The 4 defendants' approaching and threatening several women, after
which they each led one woman to the field where they committed rapes in nearby but
separate locations, is the crime of common rape and not rape in its basic form.16

g). The rape that resulted in the death of the victim | art. 218 para. (4) c.pen.)
The rape was preceded by the death of the victim and if the death does not occur
intentionally, but as a result of the intentional (direct or indirect) exercise of violence against
the victim, the crime of rape can be maintained in competition with qualified murder.
If the deed resulted in the intentional suicide of the victim, only the crime of rape (in
the typical form or in the aggravated version) is retained because the more serious
consequence is no longer legally provided for in art. 218 paragraph (4). c.pen, the crime of
finding or assisting suicide is committed only with intention, which is not the case in this
CSJ, criminal section. Decision no. 1955/1995, wmwlegalis.ro.
16

14
case, which treats guilt as the subjective attitude of the perpetrator towards suicide or
attempted suicide; Concurrence between the crime of rape and that of detecting or assisting
suicide could only be maintained if the perpetrator acted intentionally both to rape the victim
and to detect the suicide.17
If the victim, who defies the accused, hits her head on a rock and ceases to live after
the rape, it will be established that the violence was committed intentionally by the accused,
the fatal result being his fault; Death resulting from the use of force by the accused to identify
the victim of the sexual act, the act constitutes the crime of rape in its most serious form, and
not that of beating or injury resulting in death. 18,
Rape, determined by the killing of the accused by mechanical asphyxiation, by
obstructing the upper respiratory tract so that the victim does not scream and suspects that she
has been recognized, fulfills both the constitutive elements of the form of rape and that of the
crime of qualified murder committed for the purpose of facilitating or covering up the
commission of another crime, and not the elements of the crime of rape that resulted in the
death of the victim, since the death of the victim was not the intended result of the crime of
rape 19.

V. Forms of the crime of rape and the sanctioning regime

V.1. Forms of the crime of rape.

Preparatory actions are possible, but are not charged; it may constitute prior
complicity or may be part of the attempt;
The substantive offense of attempted rape includes all acts of execution prior to sexual
intercourse with the victim, if the criminal activity ceased before the conclusion of that
intercourse. The upper limit of attempted rape is the interruption of the execution before the
sexual act, exceeding this limit is the crime of rape in the form of execution.20
The attempt is possible only in an imperfect and charged form.
Rape falls into the category of material crimes in which the perfect attempt is not
possible because the full realization of the act of execution (coercion and sexual penetration)
consumes the deed;
17
M. Udroiu, op.cit .p.164
18
Tribe. Supreme Criminal Section, decision no. 4S6/197H, in (7. Amoniu, C. Bulai (coord.), PJP - vol. III, P. 90
19
.CCJ criminal section, decision no. 3341/2008, www.legalis.ro
20
CA Bucharest, criminal section, decision no. 142/1999, in CPJP 1999, p. 183

15
 Concealment of attempted rape in which only acts of coercion by threat or force are
committed in order to perpetuate an act of sexual penetration, even if the latter crime is not
attempted, as in this case one of the facts in the structure of the complex crime, Violation; the
secondary legal object.
An attempted rape will not be apprehended if the perpetrator decides to have sexual
relations with the victim, but refuses to accept the idea of rape without committing other acts.
If the concrete facts committed do not indicate the existence of a living experiment,
the judicial authorities must also check whether the sexual assault is not typical.
Impediment to achieving the result cannot be invoked as a reason for impunity.
The attempt can be abandoned without penalty; the existence of withdrawal continues
if the rape could not take place due to a physical impairment/temporary incapacity of the
perpetrator
The crime is committed at the time of sexual contact / oral or anal intercourse / acts of
vaginal or anal penetration by coercion or repression or exploitation of the victim's inability to
defend himself or express his will; therefore, the commission of both facts from the structure
of legal complexity is necessary to complete the crime, because only in this form can both the
main legal object and the accessory legal object be damaged;
It can be carried out in continuous form if it is exhausted by the time of the last act of
execution;
If the consequences of rape increase after the moment of commission, the crime has a
progressive character and will be exhausted until the more serious result is obtained.
In the situation where the crime of rape is not consummated and remains in the
attempted phase, the illegal deprivation of liberty practically regains its autonomous character
and remains in competition with the attempted rape; exceptionally, in the situation where an
attempted rape is committed immediately after the act of violence/coercion consumed without
reason, it is considered that the deprivation of liberty is still absorbed in the attempted rape,
for example if the perpetrator urges the victim in a visible place (for example, in a gang) and
immediately tries to force oral intercourse with that country on success, only attempted rape
will be punished.

V.2. Sanctioning regime

The standard form and the assimilated one [art. 218 para. (1) and (2) Penal Code]:
imprisonment from 3 to 10 years and the prohibition of the exercise of certain rights and the

16
aggravated version of rape provided for by art. 218 para. (3) Penal Code: imprisonment from
5 to 12 years and the prohibition of the exercise of certain rights.21
The rape that resulted in the death of the victim provided for by art. 218 para. (4)
Penal Code, imprisonment from 7 to 18 years and the prohibition of the exercise of certain
rights.
If the crime is committed against a minor, the limitation period for criminal liability
begins to run from the date on which he became of age; if the minor died before reaching the
age of majority, the limitation period for criminal liability begins to run from the date of
death.22

M. Udroiu
21

M. Udroiu, op.cit .p.214

22

17
 ConCluSIonS

Without accrediting the idea that the criminal investigation of some crimes is more
difficult compared to others, because within the same crime the criminal investigation can
present different degrees of complexity, the difficulty of investigating the crime of rape is
given by the concrete ways of committing it and by the possibilities of proving its
commission.
The presence in the vast majority of situations of the two persons, the victim and the
perpetrator, who often present the same fact in a different way, in relation to the personal way
in which they perceived it, with the interest that any party has in a process , compared to the
concrete possibilities available to the criminal investigation body to establish the reality of
what happened, constitutes a handicap that the forensic investigation has to overcome.
As it was shown, for a correct legal classification of rape, it is necessary for the
prosecution to establish the relationships in which the perpetrator was with the victim before
the crime was committed, but also the consequences or consequences of the criminal activity
carried out, both from the aspect of those specific to the crime of rape , as well as those that
hold the perpetrator accountable for committing other crimes.
Damage to bodily integrity or health. If the physical or mental violence used by the
perpetrator was accepted by the legislator as it is part of the content of the crime, being the 0
condition for the achievement of the objective side, exceeding the limit necessary for the
performance of the sexual act was accordingly criminalized under the aggravated form of the
crime.
It constitutes a crime of rape, according to art. 218 para. (1) Penal Code, sexual
intercourse, oral or anal sexual intercourse with a person, committed by coercion, making it
impossible to defend oneself or to express one's will or taking advantage of this state. Any
other acts of vaginal or anal penetration committed under the conditions of para. (1). The act
is more serious if the victim is in the care, protection, education, guard or treatment of the
perpetrator, if the victim is a direct relative, brother or sister, if the victim has not reached the
age of 16, if the act was committed for the purpose the production of pornographic materials,
if the deed resulted in bodily injury, if the deed was committed by two or more people
together, the deed presents maximum gravity if it resulted in the death of the victim.

18
 BIBLIOGRAPHY

1. Adrian-Catalin Tiganoaia, Criminal Law. Special part I , CH Beck, Bucharest, 2021.

2. G. Antoniu, T. Toader (coord.), Explanations of the New Penal Code, vol. III (art. 188-
256) , Ed. Universul Juridic, Bucharest, 2015.
3. G. Bodoroncea, V. Cioclei et al., Criminal Code. Comment on articles art. 1-446, Ed. CH
Beck, Bucharest, 2014.
4. M. Udroiu, Criminal law. Special part: Syntheses and Grids, ed. 2nd revised and added ,
Ed. CH Beck, Bucharest, 2015.
5. V. Dobrinoiu, MA Hotca s.a., New Criminal Code Annotated. The special part, ed. 3rd,
revised and added , Ed. Universul Juridic, Bucharest, 2016.
6. Valerian Cioclei, Cristina Rotaru, Andra-Roxana Trandafir (Ilie), Criminal Law. The
special part. Seminar notebook. Edition 4 , Ed. Beck, Bucharest, 2021.

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