Pornografia infantilă. O perspectivă asupra incriminării faptei în modalităţile deţinerii şi accesării corelate cu pseudopornografia şi pornografia ..
Child pornography. An outlook over the criminalisation of the offense in the form of possessing and accessing pseudo-pornography and virtual ...

Summary/Abstract: This paper analyses the problems that arise when trying to explain the foundation for criminalising various actions in the sphere of child pornography, given the fact that the European legislator chose to designate as a value that needs protection the children’s right to the protection and care necessary for their well-being. Meanwhile, the Romanian Criminal Code advances a different perspective, consisting in the fact that the offense is considered one against the morality or the public order and security, which, while better at explaining the criminalisation of actions concerning virtual pornography or pseudo-pornography still fails to give a solid reason for the need to punish such acts when they are perpetrated in private. Furthermore, the present study underlines the disparity existing between the effects of a minor’s consent concerning a sexual act and the one viewing the possibility of recording such an act, in the light of the fact that the Romanian legislator did not choose to create a mean by which a child involved knowingly in a pornographic material is not to be punished, while the European bill allows the Member States to make a concession concerning this situation. Also, the article briefly criticises the transposition of the Directive 2011/92/EU in the Romanian legislation, focusing especially on the correlation existing between the act of ”knowingly obtaining access” and the act of ”accessing” child pornography materials, but also on the way that the phrase ”pornographic materials” is defined in these two regulations. In what concerns the critique on the correlation between the protected social values and the criminalized actions, the paper aims to underline the fact that there are several acts that shall not be punished, due to the fact that none of the promoted individual or collective values are harmed in any way.

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