THE PRACTICE OF APPLICATION OF PENAL LIABILITY FOR THE OFFENCE OF RAPE COMMITTED BY TWO OR MORE PEOPLE: CONTROVERSIES AND SOLUTIONS

Sergiu BRÎNZA Universitatea de Stat din Moldova

Аннотация

This study aims to analyze the various application of the provision set forth at lett.c) par.(2) art.171 PC RM and the
errors admitted by practitioners that occur within the application of this provision. As a result of the conducted analysis,
there are proposed solutions to these issues. It is established that rape is a complex offence. Therefore, in the case of
rape, it is established that sequential co-authorship is possible. It is demonstrated that, in the context of the same offence,
the same person cannot cumulate the qualities of accomplice and (co-) author both together. Not being specified in the
provision of art.171 PC RM, the act of generating the victim's inability to defend him/herself or to indicate his/her will
cannot form a part of the objective side of the offence of rape. An accomplice to the offence set forth at art.171 PC RM
is to be considered that person, who contributed initially to the performance of sexual intercourse by someone else,
generating the victim's inability to defend him/herself or to indicate his/her will. If there was a prior agreement between
the perpetrators and the sexual intercourse is performed in turns, it is established that lett.c) par.(2) art.171 PC RM is
applicable, regardless of whether at the place sexual intercourse happened, at the time the offence was committed, there
was present only one of the perpetrators or all of whom participated in the prior agreement. In order for this qualification
solution to be valid, the physical or psychological coercion must be performed – prior to the sexual intercourse or in
parallel with the sexual intercourse – by one of the perpetrators or by all the perpetrators. Moreover, each of those who
performed the sexual intercourse must realize that it was only possible because of the applied coercion. It is concluded
that the abstention from the qualification under lett.c) par.(2) art.171 PC RM and art.208 PC RM does not contradict the
impossibility of double sanctioning for the same act. This is because a rape committed by two or more people (among
them the coerced minor) is a different act than that of influencing the victim to commit rape.
Keywords: rape, two or more people, participation, co-authorship, accomplice, excessive authorship, competition of
offences.