Sexual Violence and Consent: Analysis of Judgment No. 47582 of 2024

The judgment no. 47582 of October 15, 2024, issued by the Court of Cassation, raised important questions regarding the responsibility of healthcare professionals in relation to patients' sexual freedom. In particular, the Court examined the concept of error regarding consent and the requirements necessary for such an error to be considered relevant in a criminal context.

The Context of the Judgment

The case involved a general practitioner accused of sexual violence against a patient. During a visit, the doctor performed an act that affected the patient’s sexual freedom without providing adequate information regarding the nature and reasons for the treatment. The Court examined whether the absence of informed consent could constitute an error regarding consent under Article 59, paragraph four, of the Penal Code.

The Court's Maxims

Acts performed in the course of healthcare practice affecting sexual freedom - Error regarding the consent of the entitled party - Prerequisites - Correct information on the methods and reasons for the treatments to be performed - Necessity - Case. In matters of sexual violence, the error regarding the consent of the entitled party to the performance, by the doctor, of acts constituting an expression of healthcare practice, which, during a visit, affect their sexual freedom, is relevant, pursuant to Article 59, paragraph four, of the Penal Code, provided that the acting party has previously provided the patient with complete, updated, and comprehensible information on the methods and reasons for the treatment to be performed, allowing them to effectively exercise their right to self-determination. (In this case, the Court deemed the exclusion of the putative defense against a general practitioner immune from criticism, who, claiming the necessity for an ovarian examination without explaining either the type of procedure to be performed or the connection with the reported stomach discomfort, had introduced a finger into a patient’s vagina).

Implications of the Judgment

This judgment has important implications not only for health professionals but also for patients. Here are some key points:

  • Complete Information: It is essential that doctors provide clear and complete information about proposed treatments, thus enabling patients to exercise their right to self-determination.
  • Professional Responsibility: If the doctor does not provide adequate information, they cannot invoke the error regarding consent as a defense for acts that affect the patient's sexual freedom.
  • Normative Reflection: The judgment draws attention to the importance of correct information in the context of healthcare practice, highlighting the respect for the norms of the Penal Code.

Conclusions

Judgment no. 47582 of 2024 represents a significant step in the protection of personal freedom in the healthcare sector. It emphasizes the need for clear and transparent communication between doctor and patient, highlighting how the violation of this principle can have serious legal consequences. Professional responsibility cannot be evaded, and informed consent must always be at the center of medical practice, thus ensuring the dignity and rights of patients.

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