Does lack of physical resistance mean that there was consent?

No. The fact that a victim does not scream or fight back does not automatically mean there was consent. European case law, including the judgment M.C. v. Bulgaria of the European Court of Human Rights, recognises that many victims freeze or are paralysed by fear. The key legal issue is whether there was free and genuine agreement, not whether the victim resisted to the maximum physically possible.

How does Romanian law treat consent when the victim is a minor?

For minors, the law offers increased protection and significantly limits the role of consent. Under Article 2181 of the Criminal Code, sexual penetration by an adult with a minor under 16 is normally punished even if the minor appears to agree. For minors between 16 and 18, the law criminalises acts in situations of family relationship, care, protection, education or abuse of a position of trust or vulnerability. The law also includes a special rule for certain consensual acts between minors who are close in age.

What types of evidence are used to determine consent in rape cases?

Courts analyse the victim's statements and their consistency, medical and forensic reports, witness statements, digital evidence such as messages, recordings and location data, and the behaviour of the parties before and after the incident. No single element is decisive in every case; judges reconstruct the events overall to decide whether there was free and informed consent or whether the act was committed in the conditions described by Article 218 or Article 2181 of the Criminal Code.

What should a victim of rape do in Romania?

A victim should first ensure their immediate safety and, if necessary, call the emergency number 112. It is important to seek medical and forensic assistance as soon as possible in order to receive care and preserve evidence. Victims can report the crime to the police or prosecutor's office and should consider contacting specialised victim support services and a lawyer who can explain their rights and assist them during the criminal proceedings.

What should a person accused of rape do?

A person investigated or charged with rape should not ignore the situation and should exercise their right to a lawyer from the earliest stage. Before making detailed statements, they should discuss the case with their defence lawyer, including what evidence exists and how to present their version of events. They must refrain from trying to influence witnesses or destroy evidence, as such conduct can lead to additional criminal charges.

Consent and rape in Romanian criminal law

Q: When does consent end and rape begin under Romanian criminal law?

Consent ends when the person no longer freely agrees to the sexual act. Under Romanian law, rape exists when sexual penetration is obtained through coercion, by placing the victim in a situation in which they cannot defend themselves or express their will, or by taking advantage of such a state. In practice, courts examine whether the victim truly understood what was happening, could say yes or no, and was not acting under fear, pressure or exploitation of vulnerability.

Q: Can consent be withdrawn during a sexual act?

Yes. Consent must be present throughout the whole sexual act and can be withdrawn at any moment. If a person initially agreed but later clearly changes their mind and the other person continues, the situation may fall within the legal definition of rape, depending on the circumstances.

This article is for information purposes only and does not constitute legal advice. If you are involved in a criminal case – as a victim or as a suspect/defendant – you should seek individual legal assistance from a qualified lawyer.

1. Why consent is central in rape cases

In everyday language, people often describe rape as sexual intercourse “without consent”. Criminal legislation, however, uses more technical language: it speaks about acts committed through coercion, by putting the victim in a position where they cannot defend themselves or express their will, or by taking advantage of such a state.

Under Romanian law, the offence of rape is regulated by Article 218 of the Criminal Code (Law no. 286/2009). This provision covers sexual intercourse, oral or anal sexual acts and other acts of vaginal or anal penetration, when they are committed under the conditions mentioned above – coercion, inability to defend oneself or to express one’s will, or exploitation of such a situation.^{Article 218 Criminal Code}

As of 1 January 2024, Romanian law also contains a separate offence of rape committed against a minor, regulated by Article 218¹ Criminal Code, introduced by Law no. 217/2023, which significantly tightens the rules regarding sexual acts with persons under 18.^{Article 218¹ Criminal Code} ^{Law no. 217/2023}

At European level, the Council of Europe’s Istanbul Convention and Directive (EU) 2024/1385 on combating violence against women and domestic violence insist that the absence of free, genuine consent must be at the heart of criminal definitions of rape. States are encouraged to move away from models that require proof of physical resistance and towards consent-based definitions.^{Istanbul Convention} ^{Directive (EU) 2024/1385}

In practice, this means that the key legal question in a rape case often becomes: was there valid consent throughout the entire sexual act, or not?

2. The legal notion of consent: from civil law to criminal law

2.1. Consent in civil law: serious, free and informed

Romanian civil law defines the conditions for valid consent in contracts in Article 1204 of the Civil Code. According to this provision, the parties’ consent must be serious, free and expressed in full knowledge of the facts.^{Article 1204 Civil Code}

Legal doctrine explains that:

Serious consent means the person truly intends to produce legal effects – it is not a joke, mere courtesy or a gesture made “just to please someone”.
Free consent means it is not obtained through physical or psychological violence, threats or manipulation.
Informed consent means it comes from a person with discernment who understands the consequences of their act and the essential elements of what they agree to.^{Universul Juridic – Consent as an element of legal will}

Even though this regulation belongs to civil law, courts and legal scholars often use these criteria by analogy when assessing whether consent in a sexual context was real and valid.

2.2. Consent in criminal law: the “negative” definition

The Criminal Code does not define “consent” in abstract terms. Instead, it describes situations in which sexual acts are punishable: when they are committed through coercion, by placing the person in a position where they cannot defend themselves or express their will, or by taking advantage of such a state.

In other words, the law defines lack of consent rather than consent itself. In practice, however, prosecutors, judges and defence lawyers need to analyse the same elements as in civil law:

Did the person understand what was happening?
Could they say “yes” or “no” in a meaningful way?
Were there pressures, threats, fear, abuse of a relationship of authority or dependence?
Did they clearly withdraw consent at some point?

On top of that, criminal law adds further protective layers, especially in the case of minors, where “consent” is often legally irrelevant or is heavily limited.

3. How rape is defined in Romanian criminal law

3.1. Rape under Article 218 Criminal Code

Article 218 Criminal Code punishes sexual intercourse, oral or anal sexual acts and other acts of vaginal or anal penetration, when the perpetrator uses:

coercion (physical force or serious threats),
a situation in which the victim is unable to defend themselves (for example because they are unconscious, asleep, deeply intoxicated or immobilised), or
a situation in which the victim cannot express their will, or the perpetrator takes advantage of such a state (for instance substantial cognitive disabilities or a sudden incapacity to express oneself).

Penalties are aggravated when certain circumstances are present, such as the use of weapons, the involvement of more than one perpetrator, the victim’s particular vulnerability or serious injury. If the victim dies, the law provides for a higher punishment.^{Art. 218 – overview and commentary}

3.2. Rape of a minor under Article 218¹ Criminal Code

Article 218¹ Criminal Code, in force in this form since November 2025 but applicable in essence from 1 January 2024, introduces a separate offence – rape committed against a minor. In summary:

Any sexual intercourse, oral or anal sexual act, or other act of vaginal or anal penetration committed by an adult with a minor under 16 is punished, even if the minor appears to consent.
The law also regulates acts between minors and provides specific rules for situations where force, threats or exploitation of vulnerability are involved.
Sentencing ranges are significantly higher than for some previous forms of “sexual act with a minor”, and there are aggravated forms for family members, persons in positions of trust or authority over the minor, acts committed for the purpose of producing pornographic material, situations where the victim becomes pregnant, and so on.^{Art. 218¹ – full text}

The High Court of Cassation and Justice has already clarified aspects relating to the application of the more lenient law in relation to the transition from the old offence of “sexual act with a minor” (Art. 220) to the new offence of rape of a minor (Art. 218¹).^{ICCJ preliminary rulings note}

3.3. Distinction between rape and sexual act with a minor

In an important decision, the High Court of Cassation and Justice emphasised that the essential difference between rape and the offence of sexual act with a minor is the lack of consent. When the victim is a minor, however, the room for “consent” is drastically reduced by the special criminal rules.^{ICCJ Decision no. 875/2013}

In other words, it is not enough to say “the minor agreed”; the court examines whether the law considers that minor capable of consenting and whether the specific offence (for example, rape of a minor under 16) is designed precisely to protect them, regardless of any apparent agreement.

4. When does consent disappear? Practical legal markers

4.1. Express refusal: “no” means no

From a legal standpoint, an explicit refusal (“I don’t want this”, “Stop”, pushing away the other person) is a very strong indicator of lack of consent. If the other person continues the sexual act despite such a refusal, the situation may fall under rape, provided the other legal conditions are also met.

Courts will also examine the context: how clear the refusal was, how the other person reacted, what happened immediately afterwards, and what physical or digital evidence exists (messages, recordings, medical certificates, etc.).

4.2. Silence, passivity and “freezing” – can there still be rape?

One of the most sensitive points is what happens when the victim does not actively resist, does not shout, and maybe does not even say “no”, but afterwards reports the act as rape. International case law has made it clear that lack of resistance does not automatically mean consent.

A landmark judgment of the European Court of Human Rights, M.C. v. Bulgaria, held that states must ensure effective protection against rape and cannot require proof of physical resistance as a condition for prosecution. The Court underlined that victims may “freeze” or be paralysed by fear during the assault, and that the key question is whether the sexual act took place without the victim’s free consent.^{M.C. v. Bulgaria (ECHR)} ^{Council of Europe summary}

This approach is also reflected in the Istanbul Convention and in EU documents analysing European rape laws, which call for a consent-based model and recognise that many victims are unable to physically resist.^{EPRS study on definitions of rape} ^{European Women’s Lobby – analysis}

4.3. Intoxication, unconsciousness and inability to understand

When a person is unconscious, asleep, in a deep state of intoxication or otherwise unable to understand what is happening, the Criminal Code treats sexual acts with them as being committed by exploiting their inability to defend themselves or express their will. Legally, this is equivalent to lack of consent.

In practice, courts analyse aspects such as:

the level of alcohol, drugs or medication consumed,
witness statements about the person’s behaviour,
medical and forensic reports,
digital traces (videos, messages shortly before or after the incident).

Where minors or persons with mental disabilities are concerned, the threshold at which consent is considered invalid is even lower, given their particular vulnerability and Romania’s obligations under international treaties in the field of human rights and protection of persons with disabilities.

4.4. Abuse of a position of authority or vulnerability

Both the Criminal Code and international instruments place emphasis on situations where the perpetrator exploits a position of trust, authority or dependence – for example, teacher–student, doctor–patient, employer–employee, family member–minor.

Article 218¹ Criminal Code expressly aggravates penalties for rape of a minor where the perpetrator is a family member, lives with the minor or has them in their care, protection, education, supervision or treatment, or abuses a recognised position of trust or authority.^{Art. 218¹, para. (4)}

In these cases, the law starts from the assumption that it is much more difficult for the victim to say “no” and that apparent “consent” given under the pressure of such a relationship may be legally invalid.

4.5. Withdrawal of consent during the act

Consent is not a one-off “yes” that covers everything that follows. It must exist throughout the sexual act and can be withdrawn at any time. If the person initially agreed but later clearly changes their mind and the other person continues the act despite this, the situation may fall within the scope of rape, depending on all the circumstances.

This idea is consistent with European practice, where several states have reformed their laws to explicitly recognise that consent must be ongoing, free and revocable. Recent reforms in EU countries (for example, Spain, Denmark and France) follow this “yes means yes” model, focusing on whether there was freely given agreement at all relevant moments.^{EP press release on EU rules} ^{Analysis of the new French rape law}

5. Consent and minors: age limits and legal protection

In the case of minors, Romanian criminal law provides a much stricter framework. The rationale is that minors are less able to protect themselves, to understand long-term consequences and to resist pressure.

For minors under 16, sexual penetration by an adult normally falls under the offence of rape of a minor (Art. 218¹), even if the minor appears to agree.
For minors between 16 and 18, the law punishes sexual acts in particular situations where there is a relation of family, supervision, protection, education or clear abuse of vulnerability or trust.^{Art. 218¹ paras. (5¹)–(5²)}
The law also contains a special rule under which certain acts between minors close in age are not punished, provided the age difference does not exceed five years and other conditions are met. This aims to prevent criminalisation of consensual relationships between adolescents of similar ages.

It is crucial to understand that, for minors, the law often protects them even against themselves. The fact that a 15-year-old says “I agree” does not automatically mean that the adult partner is protected from liability.

6. How do courts actually assess consent in rape cases?

In criminal proceedings, consent is reconstructed after the fact, based on evidence. No single piece of evidence is decisive in all cases. Courts typically look at:

The victim’s statement and its consistency over time;
Medical and forensic reports, documenting injuries or lack thereof;
Digital evidence: messages, calls, photographs, location data, audio or video recordings;
Witness statements: what friends, neighbours or other persons saw or heard before and after the incident;
Behaviour after the event: whether the victim immediately told someone, went to hospital, contacted the police, or showed a sudden change in behaviour;
Context: previous relationship between the parties, potential motives, contradictions or corroborations between pieces of evidence.

In line with ECHR case law and European standards, Romanian courts cannot restrict rape to situations where the victim resisted to the maximum physically possible. The focus is shifting towards examining whether there was free and informed agreement, taking into account fear, paralysis, shock and other psychological reactions highlighted by studies on sexual violence.^{EPRS – Definitions of rape in EU Member States} ^{EP briefing on the Istanbul Convention}

7. Frequently asked questions about consent and rape in Romanian law

7.1. If both partners are intoxicated, can it still be rape?

Yes. Alcohol or drugs do not automatically exclude criminal liability. What matters is whether, in the concrete situation, the victim was capable of understanding what was happening and of expressing a free “yes” or “no”.

If one of the partners is so intoxicated that they cannot understand or control their behaviour, the other partner may be considered to have exploited a state of inability to defend oneself or to express one’s will – one of the situations expressly mentioned in Article 218 Criminal Code.

7.2. Can consent be withdrawn during the sexual act?

Yes. Consent is not “all or nothing” given once at the beginning. A person may consent to certain acts and not others, or may change their mind during the act. From the moment the person clearly withdraws consent and the other party is aware of this, continuing the act may fall under the legal definition of rape, depending on the circumstances.

7.3. Is it rape if I initially said “yes” but then froze and did nothing?

It can be. European case law has recognised the phenomenon of “freezing” (tonic immobility) and the fact that many victims do not scream, do not physically resist and may be paralysed by fear or shock. The fact that someone is passive does not automatically mean they consent.

Courts look at all the evidence to understand whether the situation really involved free consent, or whether any initial agreement was effectively cancelled by circumstances of fear, coercion or exploitation of vulnerability.

7.4. Is sexual intercourse with a 17-year-old who “agrees” always a crime?

Not every sexual relationship with a person aged between 16 and 18 is automatically classified as rape or sexual offence. However, the law criminalises acts in which:

the adult is a family member or lives with the minor,
the minor is in the care, protection, education, supervision or treatment of the adult, or
the adult abuses a position of trust or authority or a clear vulnerability of the minor.^{Art. 218¹ para. (5¹)}

Because the assessment is highly fact-specific, anyone involved in such a situation should consult a criminal lawyer rather than relying on general information.

7.5. How much do messages, photos and recordings matter in practice?

Digital evidence often plays a crucial role. Messages exchanged before and after the event, audio recordings, CCTV footage, social media posts or location data may support or contradict the statements of the parties.

At the same time, the use of such material raises complex issues of privacy and data protection, especially when very intimate content is involved. Romanian courts and prosecutors must balance the need for effective prosecution with respect for private life and the rules on handling digital evidence, within the framework of national and EU law.

8. European trends: towards consent-based rape laws

Across Europe, many states have reformed their rape laws in recent years, moving away from models based primarily on force or threats and towards definitions that focus on lack of consent. Studies by the European Parliamentary Research Service show a “wave of consent-based rape laws” in the EU, under the influence of the Istanbul Convention and international human rights standards.^{Uhnoo – The wave of consent-based rape laws} ^{EPRS in-depth analysis}

Directive (EU) 2024/1385 consolidates this trend by establishing common minimum rules for preventing and combating violence against women and domestic violence, including provisions on sexual offences, victim support and training of professionals who come into contact with victims.^{Council of Europe – overview of Directive 2024/1385}

Romania, as an EU Member State and party to the Istanbul Convention, is part of this wider movement and has recently tightened its national legislation on rape and sexual offences against minors.

9. What should you do if you are a victim or accused in a rape case?

9.1. If you are a victim

If you are in immediate danger, contact the emergency number 112.
Seek medical assistance as soon as possible; forensic examination is important both for your health and for preserving evidence.
Consider reporting the crime to the police or prosecutor’s office.
Contact specialised support services, NGOs or counselling centres for victims of sexual violence, which can provide psychological and legal support. Many such services operate under programmes aligned with the Istanbul Convention and EU standards.
Consider contacting a lawyer who can explain your rights, accompany you during hearings and help you interact with the authorities.

9.2. If you are investigated or accused

Do not ignore the situation and do not rely solely on informal discussions with investigators.
You have the right to a lawyer from the very first procedural acts; exercise this right effectively.
Before giving detailed statements, consult your defence lawyer about the strategy and evidence available (messages, witnesses, recordings, medical documents).
Do not attempt to influence witnesses or destroy potential evidence; such behaviour may constitute separate offences.
Keep in mind that rape cases are complex, both legally and factually; professional legal assistance is crucial.