Amendment of the Penal Code – Increased punishments for sexual crimes and human trafficking

Child sexual harassment is a serious offence, which break the children’s rights and liberties, and at the same time, it is a major social problem having side effects for the entire society, for both the short and long term. Most often, the minors who have been sexually abused suffer from post-traumatic stress syndrome, have depression episodes and even suicidal tendencies. If remained unidentified and untreated, these situations can aggravate, and the child who suffered such abuse can have serious problems integrating in society in adulthood. The consequences are more obvious when the events are reported but the authorities treat the victims with a passive attitude, lack of empathy and patience, focusing more on the offender and even blaming the minors for the abuse they have suffered.

Sexual crimes against children are one of the hardest to report, many of the minor victims only speak about the event a long time after it has occurred initially, or the facts are discovered due to unusual behavior displayed by the victim. Since 2011 and until 2019, the Supreme Council of Magistracy have registered 8543 rape cases and 2927 cases of statutory rape. When analyzing the data we must take into consideration the fact that they represent only the reported cases and even though the cases are known, they are not reported to the authorities, due to various reasons such as shame, fear or the victim’s financial dependency on the offender.

In 2017, out of the total reported case, the judges have proceeded with definitive sentences only in 42,17 % of the cases. Out of which only 50% meant suspended sentences and 25,77% of the cases finalized in execution with detention. 88% of the persons condemned to execution with detention received punishments of less than 5 years, according to the answer provided by the Ministry of Justice to an interpellation I have addressed them. Moreover, there are situations where the offenders, apart from a suspended sentence, receive another punishment that consists of doing community work within care centers for disabled children or other settings which enables them to direct access vulnerable persons and possible victims.

The judiciary and legislative system play an essential role regarding the way in which the state acts towards the cases of child abuse, especially of sexual nature. The institutional collaboration of all actors concerned is very important to ensure an efficient process, where the victim feels protected and the effects of the trauma do no emphasize.

In December (2019), I forwarded a legislative initiative so that we can change the punishments for sexual crimes towards the minors. Following the discussions and debates within the Judiciary commission in the Romanian Senate, alongside senators from all political formations and representatives of the Ministry of Justice, having into consideration the recommendations made by the European Union, we agreed upon a series of modifications regarding sexual crimes and human trafficking.

The individuals who commit traffic of minors are sentenced to 3 to 10 years in prison. Through the proposition deposed in the Parliament, the minimal punishment limit increases from 3 to 5 years. If the offender pursues aggravating circumstances, the limits of the punishment change, from imprisonment for 5 to 12 years to imprisonment from 7 to 12 years.

In addition, the changes specify that the aggravating circumstances will not only include the situation in which the offender is a family member, but also if the victim and the offender live together. Moreover, there are included the situations when the author of the crime takes advantage of the victim’s vulnerabilities knowingly, without counting the cause of this state.

In the present, the pimping of minors is punished through the add-on of half of the punishment limits provided by the Penal Code for pimping as defined by the law. The proposed changes introduce in the legislative system the aggravating circumstances that lead to an increase of the punishment with a quarter of pimping punishment. These situations must be taken into consideration when trialing cases of pimping, as followed:

• The perpetrator is part of the victim’s family or lives with the victim.
• The victims is in the care, protection and security of the perpetrator, or the perpetrator took advantage of his superior authority or the victim’s trust in committing the crime.
• The perpetrator is a person who has a record of previous sexual offences, pimping or child pornography

According to the law in force, rapist acts are punished with 3 to 10 years. Through the proposed modification of legislation, the minimal limit will be raised to 5 years.

Increasing the minimal punishment from 5 to 7 years is laid down also if there were aggravating circumstances. Regarding the understanding of aggravating circumstances, besides what is already mentioned by the legislation, there are to be introduced the situations in which the offender is a family member, lives with the victim or when the victim’s life is endangered, and not just in the case of physical harm.

The increasing of punishment limits will also apply in the following situations: the victim is in the care, education, treatment or protection of the offender; the offender is a family member or lives together with the victim; the offence has been done for pornographic materials, has caused physical harm to the victim; the rape was committed by two or more offenders. The sentence, in these cases will be between 7 to 15 years (now is 5 to 15 years). The same increased punishment will be applied in the eventuality that the aggressor has previously committed sexual crimes against children, acts of child pornography or child pandering.

Last but not least, if the death of the victim occurred after rape, the inferior limit of the punishment will be raised from 7 to 9 years, this way the final sentence will be between 9 to 18 years.

In conformity with the Penal Code, the punishment for sexual aggression is prison from 2 to 7 years. In aggravating circumstances, it will increase to 3 to 10 years in prison. Also, through the modifications made, the aggravating circumstances will include not only situations in which the offender is a family member of the victim, but also if the offender lives with the victim. Furthermore, situations when the abuse endangers the victim’s life are to be included, in addition to those when the victim is physically harmed.

The punishment for the cases in which the victim is in the care, education, treatment or protection of the aggressor will be changed from 3 to 10 years to 5 to 12 years. The same increased punishment will be applied when the offender is a family member or lives together with the victim, the act of aggression has been done for pornographic purposes, has caused physical harm to the victim, and also the situation in which two or more offenders were involved. Not least, the increased punishment will apply in the eventuality that the perpetrator has previously committed sexual crimes against children, an act of child pornography or child pandering.

Following sexual intercourse with a minor, the punishments imposed by the Penal Code vary according to the victim’s age. According to the law in force, there are three categories of punishments, for three different age groups: victims under the age of 13, victims with the age between 13-15, victims with the age between 15 and 18. First, the modification forwarded to the Parliament for debate provides changing these age limits as followed: under 14, between 14 and 16 and between 16 and 18. To manage the new modifications better, we will analyze each one separately for each age group.

1. For the offences pursued on minors under the age of 14 (*13 years according to the current law)

Now, the punishment for this act is prison between 2 and 7 years, and the new proposal will raise the maximum sentence limit from 7 to 9 years. The same crime, committed with aggravating circumstances, will be punished with the deprivation of freedom between 5 and 12 years when:

• The minor is a family member of the offender or lives with him/her.
• The victim is in the care, protection and security of the perpetrator, or the perpetrator took advantage of his superior authority or the victim’s trust.
• The offender endangered the victim’s life.
• The felony was committed for producing pornographic material.
• The perpetrator is over the age of 18.

2. Acts pursued on minors with the age between 14 and 16 (*13 and 15 according to the law in force)

In this case, the current legislation provides prison between 1 and 5 years. If the act was committed in aggravating circumstances, the punishment is between 3 and 10 years. Through the new modifications, the aggravating circumstances will include not only the situations in which the aggressor is a family member of the victim, but also the case in which the aggressor lives with the victim. Additionally, the situations in which the perpetrator takes advantage knowingly of the victim’s vulnerability, no matter the cause of this state and the aggressor is over 18.

3. Acts pursued on minors with the age between 16 and 18 years (*15-18 according to the law in force)

According to the law in force, the sexual intercourse with a minor with the age between 16 and 18 years is punished with 2 to 7 years, in the following situations: the offender is a family member (over 18); the victim is in his/her protection, care, education; the aggressor has a position of authority towards the victim. The same punishment also applies if the acts endangered the victim’s life or if it was conducted for acquiring pornographic materials.

The legislative proposal implies the increase of prison sentencing between 2 and 9 years in the cases mentioned above and adding to them, the case in which the aggressor took advantage of the victim’s vulnerability no matter the cause of it.

In the case of sexual corruption of minors, according to the Penal Code the age limit for it to be considered a crime is 13 years. Through the new amendments the age limit will be 14.

Another modification regards the increase of the superior punishment limit from 7 to 8 years and the changing of aggravating circumstances so that it will include the situations in which the victim is a family member of the offender or if they live together, if the aggressor took advantage of his/her authority towards the victim or the victim’s vulnerability.

Finally yet importantly, we have also introduced through the analyzed proposal the situation where the act was committed by a person over 18 years old to a minor with the age between 14 and 18 years. In this case, the punishment is prison time for between 2 months to 3 years if the act was committed under the following conditions:

• The perpetrator is part of the victim’s family or lives with the victim.
• The victims is in the care, protection and security of the perpetrator, or the perpetrator took advantage of his superior authority or the victim’s trust.
• The victim’s life was in danger.
• The act was committed to acquire pornographic material.

Another amendment related to the legislation that oversees the sexual corruption of minors includes the raise of age limit of the minors, from 13 to 14 years for exposing children to sexual acts, as well as raising the superior prison period from 2 to 3 years.

The same age limit increase will be applied to the cases of exposing children to exhibitionist acts. In this case the sentence increases from 2 to 3 years.

The Penal Code defines the crime of solicitation of minors with sexual purposes for victims under the age of 13 and is related to statutory rape and sexual corruption of minors. In this case, the proposed modifications oversee the increase of age threshold from 13 to 16 and the replacement of sexual corruption with child pornography for defining this crime. The modification includes the increase of the punishment limits of depriving the offender’s freedom as following: from 1 month to 1 year and from 6 months to 3 years.

The felony of sexual corruption of minors are to be treated separately, through the introduction of new measures which provide with a punishments through penalty or prison for 6 months to 3 years for the aggressors who’s victims are under the age of 14 years old.

According to the legislation, if two or more offenders commit crimes such as sexual intercourse with a minor, sexual corruption of minors or solicitation of minors for sexual purposes or the perpetrator/perpetrators have a previous criminal record of sexual crimes against children, the special limits of the punishments depriving their freedom will raise with a third of the limits for the crime committed.

The modifications about child pornography have an effect for the situations with aggravating circumstances. Thus, to be added to the legislative text, the situations in which the aggressor is a family member or lives with the victim, or when a person with previous charges of sexual nature commits the crime.

For the completion of the Penal Code, and for coherence in application but also to ensure the extensive child protection in Romania and not only, the legislative initiative proposed to the Parliament includes an exception regarding the penal law personality. Thus, for the rape cases, for other sexual crimes against children or the usage of exploitation means of a person, committed by Romanian citizens or Romanian juridical persons outside the state’s borders, perpetrators will face the Romanian Penal Law no matter if the action was included in the legislation of the hosting state where the aggression took place. Also with the purpose of protecting the victims, we proposed the inclusion of sexual acts with a minor and the solicitation of minors with sexual scopes to the list of acts that may lead to preventive arrest (amendment to the Code of Criminal Procedure).

The proposed measures aim to improve the legislative system and the way in which we approach the crimes mentioned above. It is essential that we understand that change is only possible through institutional, internal and international collaboration, through open dialogue and inclination towards finding an efficient solution to the problem and paying attention to the victims. Finally, it is important for us to realize that our actions can have a significant impact regarding the prevention of sexual harassment of minors, child pornography, child pimping and human trafficking.