According to Article 218 – Offenses against sexual freedom and sexual integrity – Rape of  the Penal Code, paragraph 1: “Sexual intercourse, oral or anal sexual intercourse with a person, committed by coercion, by making it impossible for a person to defend himself or to express his will or by taking advantages of this state, is punishable by imprisonment for 3 to 10 years and prohibition from exercising certain rights”

Regarding the phrase “making it impossible (…) to express his or her will”, in practice there is insufficient understanding of the provision of consent by a minor to sexual acts with a person of full age. Giving consent doesn’t only imply verbal or non-verbal acceptance of the part of minor victim. The fact that the minor victim did not resist either verbally or physically, did not scream, did not move away from the perpetrator, or appeared to accept and willingly engage in the sexual act, all or some of these do not imply consent.

Although it may be defined differently in different countries, in general the consent means:

• To say or show clearly that you want to have sexual relations;
• That you are free to consent to sexual relations and that you are not physically or mentally coerced or held against your will;
• That you have the capacity to understand the situation and its effects correctly.

In defining the concept “mental capacity” we will use the guidelines set out in the Mental Capacity Act, a document issued by the UK Parliament, the main purpose of which is to provide a legal framework for assessing the decision-making of adults who lack of capacity to make decisions for themselves.

Thus, according to the document, the maxim capacity to decide to engage in sexual intercourse refers to having the mental capacity to understand, retain/hold/store and weigh/reflect on relevant information about the decision the person wishes to make.

Relevant information about the decision, could be the following:

• Understanding of the nature and character of sexual intercourse, including how the sexual act occurs / its mechanism;
• Understanding by the person who will make the decision, that they can consent or refuse to the sexual acts and have the capacity to decide whether to consent or not;
• Understanding the fact that possibility of pregnancy is a foreseeable consequence of a sex between a man and a woman;
• Understanding that risks of sexually transmitted infections participate in sexual intercourse and that risks can be minimized by condom use.

Although the law clearly specifies age limits for having sexual relations with minors, unfortunately there are situations where these limits are interpreted in the light of the fact that minor has given consent.

Going back to what I mentioned a little above, giving consent does not imply the minor’s verbal or non-verbal agreement to engage in sexual intercourse or the fact that he or she has not directly refused  to engage in sexual relations. If we analyze in an applied way the different aspects of the giving of consent, we will see that minors do not have the necessary intellectual capacity, maturity and information necessary for a full and correct understanding of all or some of the following aspects: the nature and sexual character of sexual intercourse, the differences in power and psychological influence between minor and adult, the long-term psycho-emotional consequences of engaging in sexual intercourse with an adult, the correct understanding of medical information related to sexually transmitted infections, issues related to giving or withdrawing consent at any time, the correct and complete understanding of the concept of “consent” itself, or the understanding of issues related to more complex psychological processes such as sexual grooming or the ascendancy of authority and power held by an adult over a minor.

Bibliography:

1. Criminal Code. Criminal Procedure Code. Enforcement Laws (2025), Ed. Hamangiu
2. Mental Capacity Act (2005)

Article written by Patricia Aramă, clinical psychologist.