Unele considerații privind practica neuniformă de aplicare a art.171 din Codul penal [Articol]

Abstract

In the case of rape, it is possible that a certain restriction of the victim’s physical freedom (preceded by her moving to the place where the rape was committed): 1) constitutes the way of overcoming the rape victim’s resistance and 2) having approximately the same duration as the sexual intercourse maintained with the victim. In this hypothesis, the restriction of the victim’s physical freedom loses its individuality, because it represents the expression of the physical or mental coercion within the rape. The rape cannot absorb the violation of inviolability of the domicile, in general, and the violation of the inviolability of the domicile provided by para.(2) art.179 of the Criminal code, in particular. In all cases, the violation of inviolability of the domicile, which precedes, accompanies or succeeds the rape, is qualified on the basis of art.171 and 179 of the Criminal code. The orientation and the content of the intent of the perpetrator are the criteria that allow the delimitation of the perverted actions and the preparation for rape.