Carole Hardouin-Le Goff, lecturer in private law and criminal sciences at the University of Paris-II-Panthéon-Assas and director of studies at the Paris Institute of Criminology and Criminal Law, is the author of Forgetting the offense (LGDJ, 2008).
You believe that it is necessary to change the article of the penal code which, since 1980, has defined rape. For what ?
Today, the law defines rape as an act of sexual penetration or an oral-genital act committed with “threat, coercion, violence or surprise”. However, some rapes do not fall into these four situations: this is the case of women in a state of astonishment who “let themselves be done” by their rapists – a neuropsychological reaction which is now documented. Because victims are inert, their attackers do not need to use coercion – and, in the absence of coercion, convictions are not easy. These stunned women do not necessarily consent.
When such a dramatic hypothesis is not covered by the law, we must stop relying on the judge and his power of interpretation to fill the void, and not hesitate to change the law. To guarantee the free agreement of both partners to a sexual relationship, it is therefore appropriate, in my opinion, to define rape, no longer as an act imposed by threat, coercion, violence or surprise, but explicitly as an act not consented. This is also what the Istanbul Convention, ratified by France in 2014And the first version of the European Commission’s proposed directive on violence against women from March 2022.
You assert that the way in which the French penal code defines rape today poses a problem of principle. What is it?
By proclaiming that, to characterize rape, it is necessary for the attacker to have used threat, violence, coercion or surprise, the penal code postulates the existence of a “presumption of consent” on the part of the victims. . These days, especially after the #metoo and #balancetonporc movements, such a presumption seems archaic.
If the criminal law has a repressive virtue, it also has an educational virtue: by basing rape no longer on the use of coercion but on the lack of consent, the penal code would unambiguously proclaim that any sexual relationship requires agreement. free and enlightened by both partners.
Opponents of this reform believe that consent is a vague concept and that magistrates will have difficulty ruling. What do you answer them?
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