Seized of a priority question of constitutionality (QPC) relating to the law of April 21, 2021 criminalizing sexual relations between an adult and a minor aged fifteen and under, the Constitutional Council validated all the provisions of the offending text, in a decision rendered on Friday July 21.
Adopted unanimously by the two chambers of Parliament, under the first five-year term of Emmanuel Macron, the text established an age threshold, set at fifteen, for which any act of oral sex or sexual penetration suffered by an adult is automatically considered as rape, and punished as such by twenty years of imprisonment. The threshold rises to eighteen years in cases of incest. The new incrimination applies when there is an age difference of five years between the adult and the minor.
At the hearing on July 4, the applicant lawyers argued that the new law violated “the full exercise of the rights of defence”by establishing a “irrebuttable presumption of guilt”. According to them, several constitutional principles were flouted by the law: the presumption of innocence, but also the principle of equality before the criminal law and proportionality of penalties, as well as the principle of legality of offenses and penalties.
“Differentiation”
All of these grievances were dismissed by the Constitutional Council. In its decision, the institution chaired by Laurent Fabius recalls in particular that “on the one hand, this incrimination, the characterization of which does not require that these acts be committed with violence, coercion, threat or surprise, is not based on a presumption of absence of the victim’s consent. On the other hand, it is up to the prosecuting authorities to provide proof of all of its constituent elements. » It therefore follows that “the contested provisions have neither the object nor the effect of creating a presumption of guilt”. The principle of the presumption of innocence is therefore preserved.
In the same way, the arguments raised concerning equality before the criminal law and the proportionality of penalties are dismissed. Thus, the Constitutional Council recalls that “the principle of equality before the criminal law does not preclude a differentiation being made by the legislator between acts of a different nature”. Even if the facts punished by the disputed provisions “are likely to fall within the scope of the crime of aggravated rape committed on a minor of fifteen years”it is a question, with this new incrimination, of repressing them “even when they are committed without violence, coercion, threat or surprise and suppose that there is between the adult perpetrator and the minor victim an age difference of at least five years”. There is therefore nothing to prevent, judges the Constitutional Council, the coexistence of these “two offences”, Who “punish acts of a different nature”.
You have 14.71% of this article left to read. The following is for subscribers only.