Hărtuirea sexuală. Aspecte controversate
Sexual harassment. Controversial aspects.

Summary/Abstract: At present, within the Romanian legislation, sexual harassment is only referred to in the Criminal Code (art. 2031). Classified as a sexual offence, the Code defines it as “the harassment of an individual through threat or coercion, with the purpose of obtaining sexual satisfaction, by a person in abuse of her authority or influence, as resulting from her position in the workplace”. In the absence of Romanian jurisprudence, but observing the doctrinarian controversies on the issue, the article analyses the following: the meaning of the notion “sexual harassment”, the prerequisite of an existing abuse of power and the orientation this abuse must have (vertical and/ or horizontal) and the practical application of the authority/ influence abuse requirement, as mentioned in the criminal code. The author then touches upon the implications of classifying sexual harassment as a sexual offence, the acts included in the notion of “sexual satisfaction”, and the specific significance of threat or coercion in this instance, also discussing who could be included, under the text, as a person who obtains sexual satisfaction as such. Accordingly, in the author’s viewpoint, the term “harassment” must be interpreted in the spirit of the law, thus covering not only repetitive, but also non-repetitive actions. In support of this claim, the author brings forward arguments deriving both from comparative (especially French) law, and from a number of inconsistencies with other texts from the Romanian criminal code, i.e. blackmail. Due to the existing regulation, the existence of a sexual harassment offence requires the existence of an “abuse of power”, thus excluding the cases of horizontal or ascending harassment, or those in which no workplace relationship is present. Moreover, the offence does not have to be committed at the perpetrator’s place of work; it suffices if it is connected to the superior position that the perpetrator holds over the victim, owing to his influence or position. In what concerns the classification of this particular offence as a sexual offence, through sexual satisfaction we understand hetero- and homosexual acts, as well as acts of sexual perversion. Physical contact with the victim is not a mandatory condition for the existence of this offence. The offence requires the presence of threat or coercion; the coercion can only be, in our opinion, only moral, not also physical. Given this context, the author suggests an original solution, arguing that, if pursuant to the harassment, sexual satisfaction has been obtained, this offence will be retained in concourse with rape, sexual acts with a minor or sexual perversion, depending on the concrete conditions of the case, if the other conditions required by the latter offences are met. Lastly, the author observes that, in the context of the present legislation, only the person who solicits sexual satisfaction can be its beneficiary, as opposed to explicit contrary regulat

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