Consimțământul copilului, un instrument folosit pentru a diminua pedeapsa violatorilor. O practică discriminatorie preluată în prevederi legale neconstituționale

The article analyzes the practice of Romanian courts and public prosecutors, and how criminal and civil law is applied, in order to establish to what extent children are protected against sexual abuse. The New Criminal Code defines the crime of „sexual act with a minor” with explicit reference to children younger than 14, while judges are required by legal provisions to consider the consent of the child who is the victim of sexual abuse. But taking into consideration the consent of a child under 14, while the New Criminal Code accepts that offenders of the same age lack competence, creates a discriminatory situation. The superior interest of the child requires the removal of this discriminatory treatment. The author suggests the Council for Combating Discrimination should be notified, the parties involved in a court case involving a sexual act against a minor should appeal to the Constitutional Court, or the Ombudsperson should be notified regarding the discriminatory character of the provisions on „sexual acts with a minor”. Another solution would be to copy other countries, like Great Britain and France, and incriminate the sexual act with a minor as rape.