“It is beyond understanding for our fellow citizens to refuse to include consent in the definition of rape,” Migaud told legislators earlier this month.
A 2023 survey by one of France’s main polling institutes, IFOP, found nine out of 10 people polled wanted France to support the EU directive.
Consent-based rape law already exists in Sweden, Germany, Spain, the UK and more than a dozen other European countries, with the rise of the feminist #MeToo movement prompting legislative reform in some jurisdictions since 2017.
However, French criminal law defines rape as a penetrative act or oral sex act committed on someone using “violence, coercion, threat or surprise”. It makes no clear mention of the need for a partner’s consent and prosecutors must prove the intention to rape to secure a guilty verdict, five legal experts told Reuters.
France has been reluctant to move away from this definition and it’s a hotly debated issue. Some legal experts and women’s rights activists said consent puts scrutiny on the victim’s behaviour and words, rather than the accused, and a person can say “yes” without wanting to.
“Violence, coercion, threat or surprise are all means to extort consent,” said law professor Charlotte Dubois, who added she wasn’t convinced changing the law would make prosecution easier. Thousands of protesters have taken to the streets across the country in support of Gisele and the trial has re-energised the push for change.
Parliament’s delegation for women’s rights, a cross-party working group of 36 legislators, has reopened work on a bill that would redefine the legal definition of rape, two of its members told Reuters.
Marie-Charlotte Garin, a Greens MP and vice-president of the group, said she was hopeful the bill could be passed by the National Assembly by March 2025 with cross-party support.
Sarah Legrain of the leftist France Unbowed party, said the trial had provided the impetus for adding the notion of consent to the existing four criteria. “There is a discrepancy between the definition of rape in society and in courts,” she said. “With popular pressure, things can change.”
The trial in Avignon brought the issue into sharp relief when the court was shown a video of one defendant having sex with Gisele while she was asleep.
Her lawyer Antoine Camus asked the man if he had been aware at the time “that intention for the crime of rape is the will to penetrate a body that one knows is unable of expressing consent”.
The defendant’s lawyer interjected: “That’s your interpretation.” The court would have to decide whether not seeking consent was a criminal act, he said.
Carole Hardouin-Le Goff, a law professor who specialises in sexual violence, said the trial had laid bare a legal loophole.
“If we write into the law a person must make sure their partner consents, there is no possible defence for these 50 men,” she said, though any changes would not apply retroactively to this trial.
According to a study by the Institute of Public Policies published this year, only 14% of rape complaints lead to a formal investigation in France, with prosecutors often unable to find sufficient proof that the perpetrator had used violence, threat, coercion or surprise.
“Why don’t we manage to obtain convictions? The first reason is the law,” said legal expert Catherine Le Magueresse.
“The law is written in such a way that victims must comply with the stereotype of a ‘good victim’ and a ‘true rape’: an unknown attacker, use of violence and the victim’s resistance. But it is only true for a minority of rapes.”
Reuters