The New Crime of Rape of a Minor as an Atypical Means of Protecting Minors Through Criminal Policy Instruments

The Romanian legislator has chosen to question the ability of minors to give valid consent to sexual intercourse, regardless of their age, although this legislative option is highly questionable in relation to reality, to minors' access to information about sex (at school, on the internet, etc.), and to the non-punishment clause if the age difference between the minor and the active subject of the crime does not exceed five years. The article also criticizes the legislator's choice in relation to the legal content and meaning of the concept of "discernment" in the sense of civil law, as well as the scientific process of assessing this discernment. Although this issue has long been a source of contention between legislators and practitioners, it remains the element that differentiates between the various forms of this crime, which are difficult to distinguish in practice due to the variety of situations.