By means of Resolution 1123 of 24 April 1997, the Parliamentary Assembly of the Council of Europe decided: a) to cease monitoring the way Romania respects the obligations it has committed itself to upon becoming a full-fledged member of the Council of Europe; b) to resume monitoring if within one year since the adoption of the Resolution the Romanian state does not fulfil the conditions explicitly mentioned in this document.
     Point 9 of the Resolution refers to the modification of art. 200 of the Penal Code, while the Jansson Report on the basis of which the Resolution was adopted provides explicitly for the annulment of this text.
     The present draft bill meets the requirements of the Parliamentary Assembly and sets out to adapt penal law both to reality and to European norms in the field. Acceptance of diversity is an essential feature of a democratic society. The European Human Rights Court enounced this principle since 1981, in the case Dudgeon v. Northern Ireland, constantly developing its case-law towards decriminalization of same-sex relations as a requirement of modern society.
     Applying the constitutional principle of non-discrimination on account of sex, not only does the draft bill propose decriminalization of same-sex relations between consenting adults, but also the adoption of unique penal provisions for situations where sexual relations are situated outside the law (coercion or minor age), irrespective of the partners' sex. In this context, the draft bill provides a definition of sexual relations, in order to eliminate misinterpretations and to include all possible situations, thus preventing the penal law from being used in an abusive manner.
     The author also tried to comply with the need to respect constitutional rights to freedom of expression and association as well as the principle of non-discrimination, requirements that have led to repealing the text that incriminated the exercise of these rights in connection with same-sex relations.
 In order to protect minors, irrespective of their sex, the draft bill suggested modifications of the penal law in the sense of raising the age limit for victims of any kind of sexual abuse and of broadening the range of situations where minors may be sexually assaulted, expanding thus the scope of criminal liability in this field.
     The draft bill provides a complete regulation of Chapter III Title II - "Sex-related offenses" of the Penal Code, unifying and corroborating legal texts.
     To conclude, This draft bill attempts to cover from the perspective of penal law a broad range of sexual relations and to bring Romanian legislation up to date with European standards and the requirements of a civilized modern society where individual rights are genuinely observed.
 
 
 

TITLE II - CRIMINAL OFFENSES AGAINST INDIVIDUALS

CHAPTER III - SEX-RELATED OFFENSES

 ARTICLE 197 - "Rape"

 Paragraph 1 shall be modified as follows:

 "Sexual relations with a person unable to defend him/herself, to express his/her will or by coercion shall be punished by prison from 3 to 10 years."

 Paragraph 2 remains unchanged and reads as follows:

 "Punishment shall be prison from 5 to 15 years if:
 a) the deed was perpetrated by two or more persons together;
 b) the victim was placed under the perpetrator's care, protection, education, guard or treatment;
 c) the victim's health or physical integrity was seriously harmed."

 Paragraph 3 shall be modified as follows:

 "Punishment shall be prison from 10 to 20 years if the victim did not reach the age of 15; if the deed resulted in the victim's death or suicide, punishment shall be prison from 15 to 25 years."

 Paragraph 4 remains unchanged and reads as follows:

 "Investigations on the deed provided under para. 1 shall start only upon the complaint of the alleged victim."

 Paragraph 5 shall be repealed and replaced as follows:

 "Sexual relations shall be defined under the penal law, as the insertion of a penis into the vagina, anal or oral cavity, as well as of any foreign object in the vagina or anal cavity."

 ARTICLE 198 - The title shall be modified from "Sexual intercourse with a minor girl" to "Sexual relations with minor persons"

 Paragraph 1 shall be modified as follows:

 "Sexual relations with a person under 15 shall be punished by prison from 1 to 5 years."

 Paragraph 2 shall be modified as follows:

 "The same punishment applies to sexual relations with persons aged 15 to 18 if the deed is perpetrated by the tutor or guardian, or by the person who takes care or is in charge of the alleged victim, the personal doctor, professor or trainer, availing him/herself of this position."
 
 

 Paragraph 3 shall be modified as follows:

 "When the deeds provided under paras. 1 and 2 have the consequences provided under art. 197 para. 2 letter c), punishment shall be prison from 3 to 12 years."

 Paragraph 4 remains unchanged and reads as follows:

 "If the deed resulted in the victim's death, punishment shall be prison from 7 to 15 years."

 Paragraph 5 shall be repealed.

 ARTICLE 199 -  "Enticement"
 Shall be entirely repealed.

 ARTICLE 200 - "Same-sex relations"
 Shall be entirely repealed.

 ARTICLE 201 - "Acts of sexual perversity"
 Shall be entirely repealed.

 ARTICLE 202 - The title shall be changed from "Sexual corruption" to "Sexual molestation"

 The text of the single paragraph shall be modified as follows:

 "The deed of a person who, otherwise than as previously stated in this chapter, sexually touches a child under 15 years of age or exposes himself to such a child in an offensive manner or induces the child to undertake or participate in an act with sexual implication shall be punished by prison from one month to 2 years or fine."

 ARTICLE 203 - "Incest"
 Shall remain unchanged.

 ARTICLE 204 - "Attempts"

 The text of the single paragraph shall be modified as follows:

 "Attempts to perpetrate the crimes provided under articles 197, 198, 202 and 203 shall be punished."

EXPLANATIONS AND TECHNICAL NOTES - on the draft bill for the modification of Chapter III - Title II of the Penal Code

ARTICLE 197 - "Rape"

     Paragraph 1 introduces the phrase "sexual relations" to cover all sexual acts irrespective of the participants' sex. The current penal provisions use three different phrases (sexual intercourse, sexual relation and acts of sexual perversity) to distinguish between "normal" and "abnormal" both with regard to the type of sexual acts and to the participants. We eliminated this distinction because it does not agree with reality and runs counter to the principle of non-discrimination on account of sex.
     The phrase "sexual relations" will be defined in para. 5 and used in all the texts of Chapter III.

 Paragraph 2 was not modified.

     Paragraph 3 operates a single modification, raising the victim's age from 14 to 15 years. The 14-year limit is one of the lowest in Europe. Thus, children of both sexes enjoy increased protection. Actually, even family law provides 15 years as the minimal age of consent for girls (with special licence, departing from the 16-year limit). This proves that sexual relations under 15 years are considered harmful for health, causing more serious damages; de lege ferenda, the minimal consent age should be the same for men and women, but this matter exceeds the aims of the present draft bill. However, it is obvious that the 14-year limit does not concur with medical conceptions regarding the physiological capacity to have sexual intercourse; consequently, the aggravated form of rape should be related to an age superior to 14.

 Paragraph 4 was not modified.

     Paragraph 5 was completely repealed. The proviso according to which the perpetrator that marries the victim is not punished induces the idea that rape is a crime against honour (that may be fixed by marriage) and not a violent crime. Actually, the annulment of this paragraph comes to support women victims of rape, eliminating pressures that they enter a marriage that is anyway not based on full consent. Such marriages are usually doomed to failure because they are founded on a violent act instead of mutual understanding. This paragraph actually grants impunity to authors of violent acts and does nothing to help the victims. Other European states do not have similar legal texts.
 The new paragraph 5 defines sexual relations - see the comments under paragraph 1. The text proposed is based on a definition provided by Human Rights Watch - Women Rights Project.

ARTICLE 198 - "Sexual intercourse with a minor girl"

     Title: changed to "Sexual relations with minor persons", in order to cover both sexes of potential victims.
     Paragraphs 1 and 2: the minimal consent age was raised from 14 to 15 years - the comments under Art. 197 para. 3. "Sexual intercourse" was replaced by "sexual relations" - see the comments under art. 197 para.1.
     Paragraph 3: the first part, redundant with the provisions of art. 198 para. 2, was removed.
     Paragraph 4 was not modified.
     Paragraph 5 was completely repealed. The proviso according to which the perpetrator that marries the victim is not punished was eliminated - see the comments under art. 197 para. 5. As an additional legal argument, penal incrimination is aimed at protecting minors' health; health damages cannot be repaired by a marriage of the two parties.

 ARTICLE 199 - "Enticement"

     The article was entirely repealed. Sexual relations with a person under 15 are already incriminated by art. 198 of the Penal Code. With regard to persons aged 15 to 18, we consider that they have enough power of judgement to decide why they wish to entertain sexual relations. Actually, according to civil law, girls are regarded as capable to enter contractual relations - marriage included - from the age of 16 (15 with special licence), presuming that they have enough power of judgement at that age.

 ARTICLE 200 - "Same-sex relations"

     The article was completely repealed, as a result of the modifications operated in the texts of this Chapter so as to apply irrespective of the perpetrator's or victim's sex.It complies with the principle of non-discrimination on account of sex.
     The deed incriminated by paragraph 1 can be punished according to the provisions of art. 321. The phrase "public scandal" has been criticized both by the Council of Europe (the Jansson Report) and by the European Parliament, as well as by all national and international organisations involved in the human rights field (see the Amnesty International and Human Rights Watch reports). Due to the vague wording and hazy contents, this notion has been abused in judicial practice. It is discriminatory, because it does not apply to heterosexual relations, although they produce identical effects. It is useless as long as sexual relations perpetrated in public, irrespective of the partners' sex, are punished by other texts of the Penal Code and of Law 61/1991.
     The deeds incriminated in paragraphs 2 - 4 are already included in the proposed versions of art. 197 and the following. The present differences of punishments are unjustified and discriminatory.
     The deed incriminated by paragraph 5 represents a violation of the freedom of expression and association. The texts has been constantly criticized by the Council of Europe, the European Parliament and the above mentioned organisations, who asked that it be repealed.

 ARTICLE 201 - "Acts of sexual perversity"

     The article was completely repealed - see the comments under art. 197 para. 1.
     "Abnormal" sexual acts were included in the definition of "sexual relations" in order to respect the right to private and intimate life, and their perpetration by coercion, by violence or against minor persons are incriminated in the previous articles.
     The perpetration of such acts in public is punished in accordance with art. 321 of the Penal Code and with contraventional norms - see the comments under art. 200 para. 1.

 ARTICLE 202 - "Sexual corruption"

     Title: was changed to "Sexual molestation", because this is the sense of this article's provisions.
     The single paragraph was modified by introducing the age of 15 as age of consent - the previous comments on age. New situations were introduced which substantially broadened the scope of this text in favour of minor victims. The circumstances under which this crime may be perpetrated were clearly defined in order to ensure a correct enforcement. The present text does not provide sufficient protection for minors as compared to the European legislation; the article was worded using the Swedish penal law as a model.

 ARTICLE 203 - "Incest"

 Has not been modified.

 ARTICLE 204 - "Attempts"

 Was modified in accordance with the newly proposed texts.

RECOMMENDATIONS REGARDING OTHER PENAL CODE TEXTS

     ARTICLE 325, defined as "Dissemination of obscene materials" is too vague and too general; it risks to be employed abusively and inconsistently, due to the fact that the term "obscene" is not defined. Its enforcement may lead to unjustified violations of freedom of expression.
     We propose that this article be repealed and penal liability replaced by contraventional liability.

     ARTICLE 312, defined as "Outrage against good manners and disturbance of public peace" is also vaguely worded and has often been enforced abusively (e.g.: the "University Square" cases). Actually, this text overlaps with contraventional texts; liability should be exclusively contraventional, based on clear texts.

     SEXUAL HARASSMENT is not provided for in the Romanian legislation, but it could be included in the Penal Code, Title II, Chapter III - Sex-related criminal offenses.