Last year, Gisèle Pelicot waived her right to anonymity and demanded the public be allowed access to the trial, winning hearts and minds across France and abroad, after saying it was her abusers – rather than her – who should be ashamed.
Tens of thousands of people demonstrated in major French cities against violence targeting women, demanding that the country ‘learn’ from the trial. And the then-Prime Minister and Justice Minister agreed that the notion of consent should be included in French laws on rape and sexual violence.
President Emmanuel Macron has also signalled that he would back changing the law.
In December, all the defendants in the Pelicot trial were convicted at a court in Avignon, but 17 have since appealed against their sentences, even though they were generally lighter than had been demanded by prosecutors. A second trial is scheduled for late 2025, in Nîmes.
The trial opened up a long-suppressed discussion into that impact of rape, and of drug-enabled rape, though work on the report – launched by the Délégation aux droits des femmes de l'Assemblée nationale – had started before the trial began.
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The MPs’ report, published on Tuesday, at the conclusion of a year-long ‘information mission’ led by Macronist Véronique Riotton and Green Marie-Charlotte Garin, argued that France’s rape laws should include “the notion of non-consent into the criminal definition of rape and sexual assault”.
“Almost 10 years after the start of the #MeToo movement, and as the [Pelicot] trial showed once again, the fight against rape culture must be a priority: the fight against rape culture needs a law that is clearer,” the report concluded.
Article 222-23 of the French Penal Code currently states that any act of sexual penetration, of whatever nature, or any oral-genital act by "violence, constraint, threat or surprise" is rape.
Consent or otherwise is not a consideration.
According to the report a reference to ‘non-consenting’ acts should be added to the current wording.
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In the face of “unrelenting sexual crime” and “an enduring climate of impunity”, the report argued that “incorporating the notion of non-consent into the criminal definition of rape and sexual assault”.
“The new definition must specify that consent is specific, must be freely given and can be withdrawn at any time,” it said.
Lack of consent must be considered within the broader circumstances of an alleged rape, to remove the focus from the victim, while cases such as the Pelicot trial highlighted the desperate need for French rape laws to specifically recognise sex crimes in which consent could not be given.
France is a signatory to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, known as the Istanbul Convention, which says that, “consent must be given voluntarily as a result of the free will of the person considered in the context of the surrounding circumstances”.
Some 19 European countries have added clear and definitive references to consent into their rape laws. In Spain – where the law took effect in October 2022, four years after the country was shocked by the notorious ‘wolf-pack’ case, in which a young woman was gang-raped by five men in Pamplona during its bull-running festival – it is known as ‘only yes means yes’.
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But efforts to implement an EU-wide law preventing sexual violence that inscribed this notion of consent failed in part because France opposed it.
A culture of impunity is evident in France, the MPs behind the report said. According to Ministry of Justice figures, just 1,206 rape convictions were handed down in France in 2022 – even though an act of sexual violence is committed every two minutes. In 2018, the Ministry recorded 73 percent sex assault complaints were either dropped or dismissed.
At the time of the Pelicot trial, one of the lawyers for the defence argued against changing the law to include reference to consent, Franceinfo reported.
“Modifying the text on rape to include the notion of consent would have a deleterious effect on criminal law,” the lawyer, who represented four defendants in the trial, said. “Today - and this is the basis of our criminal law - it is always up to the prosecution to prove that a crime or misdemeanor has been committed. It’s up to the prosecution to prove the materiality and intentionality of the offence.
“If we introduce the notion of consent, then the burden of proof will be reversed. It will be up to the accused to prove that he or she had the consent of the person claiming to be the victim. This would be a real revolution in French law and … it would affect the presumption of innocence.”
The MPs recognised that adding the notion of consent to current rape laws was not “enough on its own” to help victims report rape crimes and improve conviction rates. But they said it would be the start of a “paradigm shift” that has long been demanded by women’s groups and – increasingly – public opinion.
There must also be more resources put into the legal system and into the “fight against rape culture”, the MPs said.
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