The question came up at the end of the interview. “Today, consent is not included in [la définition du viol]. The president [de la République] wanted to enshrine it in law, are you in favor of it? ?” “Yes”, approved, without saying more, Didier Migaud, the new Minister of Justice, interviewed on France Inter, Friday September 27. The response from the Minister of Justice revives the debate on the inclusion of the absence of consent in the criminal definition of rape. This debate, recurring since the shock wave caused by the #MeToo movement in 2017, erupted on March 8, on the sidelines of International Women’s Rights Day, when Emmanuel Macron declared that he would “register in French law” this notion.
The subject resurfaced with the so-called Mazan rape trial. Since September 2, Dominique Pelicot has been on trial before the Vaucluse criminal court for having drugged, then raped and had his wife raped by dozens of men, 50 of whom appear alongside him. Gisèle Pelicot, plunged into a state close to a coma at the time of the events, had not given her consent for these sexual acts. The accused, tried mainly for aggravated rape, were not, or barely, concerned about it: during their interrogations, they showed indifference towards this notion of consent and seemed to have knowledge of it. unclear, or even ignore it completely.
Currently, the word “consent” does not appear explicitly in the law: article 222-23 of the Penal Code defines rape as “any act of sexual penetration, of whatever nature, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, coercion, threat or surprise”. “Consent is rather defined in the negative by stating that there is no consent if there is ‘violence, coercion, threat or surprise'”analyzes Valérie Rey-Robert, feminist essayist, in A French rape culture (Ed. Libertalia, 2020).
However, parliamentarians believe that this definition of rape excludes a certain number of victims. Consent “cannot be deduced from the simple absence of resistance”, considers LFI MP Sarah Legrain. She emphasizes that “cases of astonishment, dissociation or control” are subject to “many classifications without follow-up”. “Society has already integrated the fact that consent is what makes the difference between sexual intercourse and rape; criminal law does not do this,” says environmentalist senator Mélanie Vogel, interviewed by AFP. The two parliamentarians each tabled legislative proposals to introduce the notion of consent into the criminal definition of rape: Mélanie Vogel in the fall of 2023 and Sarah Legrain (New window) in February.
This legislative amendment would also allow “to broaden the scope of evidence that can be provided during a trial”, underlines Mélanie Vogel.
“There are currently situations in which we are not able to prove that there was surprise, coercion, threat or violence, but we are able to prove that there was no consent.”
Mélanie Vogel, senatorto AFP
With this change, “it would be up to the man accused to demonstrate that the victim had freely expressed her consent to the sexual act, and this would prevent the perpetrator from exonerating himself by saying that she had not objected”highlighted, in a column published in The World in 2023, Audrey Darsonville, professor of criminal law. She clarified in March to franceinfo that the introduction of the term “consent” would make it possible to reverse the approach of the investigation. “We will ask the author: was he interested in the consent of the partner?”
But how can we assess this notion of consent? This is precisely what gives rise to fears. During a Senate hearing on February 1, former criminal lawyer Eric Dupond-Moretti, Didier Migaud’s predecessor at the Ministry of Justice, warned against “shift towards contractualization of sexual relations” and estimated that the “major risk” of such a change was “to place the burden of proof of consent on the victim, when the only person responsible for the rape is the rapist”. Reservations shared by several lawyers. Today, “we turn to the accused, even if he contests, and we will try to see if he used violence, coercion, threat or surprise to obtain this sexual favor which the complainant says was not I don’t agree at all, so we’re going to look into his behavior.”explained Christian Saint-Palais, president of the association of criminal lawyers, on France 5, in March.
“To legally define rape by the absence of consent of the complainant is to shift the debate to the behavior of the complainant”, for example, wrote on X on September 19, the criminal lawyer Julia Courvoisier, who said “opposite” to such an extent.
“Basing rape on the idea that it is sexual intercourse in which one of the two partners has not consented implies more the idea of questioning the behavior of the victim than that of the rapist. What signs does Was she given her non-consent explicit enough? So it is undoubtedly a trap to think about rape in these terms? also exhibits Valérie Rey-Robert in A French rape culture.
It all depends on the words written in the law. “IWe must be careful and not make the victim’s behavior the criterion for qualifying as rape. Because, in this case, it is his behavior which would be at the center of the legal discussion, and no longer that of the accused.” insists Laurence Rossignol in The New ObsThursday September 26. Furthermore, the socialist senator emphasizes that in her eyes, “it will not be enough to introduce this notion of consent to make justice more effective in cases of sexual violence.”
However, convictions have increased significantly in the sixteen EU countries (including Spain, Greece and Denmark, according to the European Parliament) which have chosen to change their definition of rape. In Sweden, where a law considers any sexual act without explicit agreement to be rape, even in the absence of threat or violence, since 2018, convictions for rape have increased by 75%, according to a 2020 report on the effects of this reform, cited by AFP.
Concretely, in this Scandinavian country, two situations are considered rape which were not covered by the law six years ago. When “the victim says no and shows it with his body, but does not struggle”, and when she “remains silent and passive during the attack”, notes the National Crime Prevention Council. In Swedish society, biases persist, according to feminist associations. Nevertheless, the principle of consent, translated by “free will” (frivillighet) in the law, has been assimilated by the judicial system, estimates Stina Holmberg, co-author of the report, from AFP.
A development that many associations are calling for in France. “LLegislation based on consent will not prevent rape from occurring, but it would be an important step towards changing attitudes and the administration of justice “, wrote Lola Schulmann, advocacy officer at Amnesty International France, in March on X, after Emmanuel Macron’s position on the evolution of the definition of rape.
The Head of State subsequently hoped that a proposed text could see the light of day “by the end of the year.” The dissolution of the National Assembly in June disrupted the calendar and paused work on this subject.
However, MP Véronique Riotton (Together for the Republic), at the origin of the parliamentary information mission on the issue, wants to relaunch them. “We worked on the introduction of the notion of consent in the criminal definition of rape during the previous legislature and we intend to resume our work,” she reacted on her X account, after Didier Migaud’s comments. LThe environmentalist deputy Marie-Charlotte Garin, co-rapporteur of this mission, recalled in March that the idea was not “to remove the four other criteria which are threat, violence, coercion or surprise, but to complete the definition”. She assured Friday on X that she and her colleague Valérie Riotton were “more determined than ever” For “to resume” work in the Assembly.