By: Andrés Rakower
On January 21, 2025, a report was presented by two Members of Parliament recommending an amendment to existing French law to add a reference to the victim’s lack of consent to the definition of rape. While the origins of the report predate Gisèle Pelicot’s trial, the visceral allegations transformed the case into “a trial of rape culture itself,” as described by the parliamentary mission studying the issue, and in doing so created an appetite for change in the legal structure. In the reality-shattering trial, Dominique Pelicot and 50 other men were found guilty of rape, attempted rape, or sexual assault for their respective roles in a series of attacks spanning almost a decade. Dominique admitted he would drug his now ex-wife Gisèle Pelicot so he and dozens of strangers he recruited online could assault her as she was unconscious.
French law defines rape as “any act of sexual penetration, of whatever nature, or any oral-genital act committed upon another person or upon the person of the perpetrator through violence, coercion, threat or surprise,” and makes no mention of the need for a partner’s consent. Proponents of the addition argue that including non-consent to the list of violence, coercion, threat or surprise would enable cases involving paralysis, coercive control or exploitation of the vulnerable to fall within the scope of the definition of rape. The report argues that the current definition exacerbates harmful societal prejudices by defining what “makes a ‘good’ victim – someone who resists, fights back and behaves ‘exemplarily’ – and what constitutes a ‘real’ rape, involving violence and coercion by a monstrous or foreign attacker,” discouraging victims from filing complaints, and resulting in more dismissed cases. The report stresses the need for there to be an acknowledgement that consent is given for specific acts must be freely given and could be withdrawn at any moment.
While the impetus for change is championed by several Members of Parliament and President Emmanuel Macron, they would be wise to heed the complexities of how consent is defined and the repercussions such a change could have. French lawmakers should pay particular attention to the fraught implementation of their Southern neighbor’s “Only Yes is Yes” law in 2022, and its subsequent amendment in 2023. As opposed to the impact the Pelicot case’s horrific facts are having on the French legislature, the Spanish government was instead forced to react when a horrific sex case yielded an unpalatable result. A local court’s controversial sentencing of five men to nine years of incarceration for lesser charges of sexual abuse, after reviewing video evidence the men recorded of themselves repeatedly assaulting an 18-year-old girl and determining rape had not occurred because the victim was “being silent and passive,” was reversed by Spain’s Supreme Court. The Supreme Court ruled that the men committed rape, and increased their sentence to 15 years. Following on the heels of the 2019 Supreme Court decision, Spanish lawmakers passed the “Only Yes is Yes” law in 2022, redefining all non-consensual sex as rape. But in an effort to streamline the different criminal sexual offenses based on violent acts into a workable framework based instead around consent, Spanish lawmakers merged the crimes of sexual abuse and sexual aggression, and in doing so, enabled some defendants to successfully seek reduced sentences or early release. The new law lowered minimum sentences for sexual assault cases where there was no aggression.
Despite the attempt to recenter the consent of the victim instead of the violence of the attacker, Spanish law gave way to political sensitivities. When reports surfaced of at least 978 cases of offenders getting their sentences reduced or ended early, Spain’s Prime Minister Pedro Sanchez was forced to apologize to the victims of sexual abuse. The law that was meant to better protect them had also created loopholes for some of their tormentors to receive lesser sentences. Spanish lawmakers rushed to pass an amendment to the law which undid some of the reduced minimum sentencing. In an effort to close loopholes and impose harsher penalties, the law’s streamlining of different crimes was undone, ironically returning to the use of violence or intimidation as the key benchmark to differentiate between different crimes.
The French have other models to consider in their quest to incorporate consent into their definition of criminal sexual acts. Proposals for a change from a coercion-centered model to a consent-based law in the Netherlands could be helpful for French lawmakers to pay attention to. Dutch law, currently requiring unequivocal objection to the sexual act for it to be criminal, as opposed to Spain’s affirmative consent model that presumes that sexual conduct is non-consensual unless consent has been affirmatively communicated, is seeing proposals to expand what actions will be considered signals of unwillingness to determine lack of consent. Hence, even without a strict definition for consent in the statute, the new proposed Dutch law attempts not to be overinclusive of activity that isn’t affirmatively communicated while not forgoing major problem areas. The Dutch coercion-model currently fails to criminalize sex by deception, leading to confusing court decisions, such as the recent holding that defendant’s stealthing, or intentional removing of his condom during intercourse despite previous assurances to use one, could not be considered coerced sexual penetration, but the defendant was nonetheless found guilty of forcing the victim to undergo unprotected sex. Dutch lawmakers have expressed their desire to criminalize stealthing and intentionally damaging a condom under the new law, but must tread a fine line to only criminalize deception directly related to the protected interest of rape, such as sexual integrity, and not merely ancillary conditions, to guard against criminalizing lies pertaining to marital status or wealth as deception.
While French lawmakers undeniably have good intentions at heart, the only sensible path toward workable progress is one taken soberly and cautiously. French lawmakers would be prudent to keep an eye on the successes and failures of their several neighbors as they plunge into this new challenge.
