France (Finally) Changes the Legal Definition of Rape to Include Consent
The definition defines consent as free and informed, specific, prior, and revocable. 'It cannot be inferred solely from the victim’s silence or lack of response.'
In what women’s rights advocates are hailing as a historic move, the French government officially changed the legal definition of rape to include the concept of consent, bringing the nation in line with European standards and a growing number of countries in the European Union.
The previous law in France defined rape as “any act of sexual penetration, of any kind, or any oral-genital act committed on another person…by means of violence, coercion, threat or surprise.” There was no mention of consent.
Now, by rewriting the law to include the concept of consent, France is signaling a shift "from a culture of rape to a culture of consent," Véronique Riotton, a member of the centrist Renaissance Party and one of the bill’s two sponsors, said after the measure passed France’s lower house of parliament last week and became official with the senate vote on October 29.
The effort to add non-consent to the law began two years ago. That’s when the European Parliament sought to come up with a common definition of rape across the E.U.–one based on the concept of consent. At the time, President Emmanuel Macron opposed the measure. In response, Riotton and center-left Ecologist Party member Marie-Charlotte Garin jointly formed a French parliamentary working group and spent 14 months studying the issue. Their work resulted in the draft law that formed the basis of the current statute.
Macron’s thinking on the issue soon evolved, but others were slower to embrace the idea. As recently as last year, during the Pelicot mass rape trial, many feminists, lawmakers, and legal experts opposed adding consent to the law, worried that it would put the onus of proof onto victims. Even Gisèle Pelicot’s lawyer, Antoine Camus, expressed concerns that consent could be given under duress or due to an imbalance of power, and had doubts that rewriting law would make rape prosecutions easier. The concept of consent played a central role at the trial, with many of Pelicot’s assailants arguing that what they had done was not a crime because they didn’t have the “intention” to rape her, which could be seen as a relevant factor under the previous law.
However, throughout the trial, the presiding judge routinely asked the men if they had obtained Gisèle Pelicot’s consent, pushing the issue into the public discourse. “The trial of Gisèle Pelicot’s attackers really paved the way politically for this reform,” said Garin, who co-sponsored the bill.
As of Wednesday’s vote, rape in France is now defined as “any act of sexual penetration, of whatever nature, including any oral-genital or oral-anal act, committed on another person without their consent.” The definition then goes further, defining consent as “free and informed, specific, prior, and revocable. It is assessed in the light of the surrounding circumstances. It cannot be inferred solely from the victim’s silence or lack of response.” Drawing on the language of the previous statute, the new law specifies that “there is no consent if the sexual act is committed through violence, coercion, threat, or surprise, regardless of their nature.”
Monique El-Faizy
Josie Cox
Monique El-Faizy
The revised law brings France into alignment with the Istanbul Convention, officially known as the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, which was signed in 2011 and ratified by France in 2014.
“It’s a paradigm shift,” said Catherine Le Magueresse, author of "The Pitfalls of Consent: Toward a Criminal Redefinition of Sexual Consent." “Now, it is deemed the responsibility of the person initiating sexual contact to ensure that the other person truly consents to that sexual contact.”
While the revised law was passed by a sweeping majority in both houses, it was not without opposition. Far-right lawmakers voted against the measure, arguing that the new definition was subjective and difficult to understand.
"Lawyers will now have to dissect not the violence of the perpetrator, but the gestures, words, and silence of the person claiming to be the victim," National Rally lawmaker Sophie Blanc, a representative for the far-right National Rally, said last week.
But those views are now firmly in the minority. “I think that even people who were against it have understood that, in the current cultural climate…we are on the side of the culture of consent, and that is what won out in the end,” said Garin.
Gisèle Pelicot’s lawyer has also come around. “While I was very concerned that changes to the text would produce the exact opposite of the desired effect, I increasingly believe that these changes are a step in the right direction.” Even more important, he says, is that "it reflects a fundamental shift in society, which I believe will continue because it is the direction of history.”
Or, as Le Magueresse puts it, “We no longer want these acts that violate and infect people [to be] based on centuries-old sexist stereotypes that say it is up to women to resist if they do not want to be raped.”
