PFor many professionals confronted every day with the situations of victims of sexual violence, as for most of our fellow citizens, it is more than urgent to redefine rape criminally in France.
How could it be otherwise given the massive nature of the dismissals (74% of complaints), dismissal orders, corrections and acquittals pronounced, not “in empty folders”but in cases where there are elements which should lead to criminal prosecutions and convictions?
The statistics are known. Only one in ten rape victims files a complaint. But why would they file a complaint and expose themselves to reprisals, including legal ones, from the attacker? Undergo legal treatment which de facto too often allows impunity for those accused?
Contrary to what some claim, these failures are not only due to “bad application” of criminal law, but of the law itself. Judge for yourself: the fact of being non-consenting or not consenting to sexual activity is not enough to characterize rape, and an investigating judge can write, for example, that: “The lack of consent of the civil party is not sufficient to characterize rape. »
Take into account the astonishment of the victim
We are told that we should not change the current definition of rape, because taking consent into account differently in our penal code would penalize the victims, who would then rely on “a burden of proof” (i.e. demonstrate that they did not consent). This ignores the fact that the current definition presupposes implicit consent to any sexual act, and that it conveys stubborn stereotypes. The text in fact tells us that only acts committed by “violence, coercion, threat, or surprise” are rape.
This argument also ignores that to establish these material elements, justice essentially examines the behavior of the victims: “How were you dressed?” » “Why did you talk to him?” » “Why did you stay?” » As well as their reactions: “Why didn’t you scream, resist, file a complaint immediately…?” »
However, in the majority of situations, the attacker is known to the victim: he is a friend, an ex, a cousin, a colleague, a neighbor, an elected official, a doctor, a teacher, a minister… To attack, it will rely more often on the astonishment of the victim, on their vulnerability, on their precariousness, on relationships of domination or on moral constraint… But our law does not oblige magistrates to draw legal consequences from these elements which attest to the impossibility of the free will of the victim.
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