Article published on January 22, 2022 at 8:14 pm
By Jérôme Navy, lawyer at the Paris Bar
On December 9, 2021, Yannick Agnel was placed in custody in Mulhouse, accused of having raped in 2016 the daughter of his coach Lionel Horter.
Placed under judicial supervision, the two-time Olympic swimming champion is now under investigation for rape of a 15-year-old minor. According to Edwige Roux-Morizot, prosecutor of the Republic of Mulhouse, the former high-level swimmer admitted having had sexual relations with the young teenager, then aged 13, while claiming that they were consensual.
This case, which caused a certain amount of shock in the world of swimming, allows us to look back at some of the major legislative developments that have strengthened the repression of sexual crimes against minors.
The law of April 21, 2021 or the introduction of a new threshold of non-consent
Under the terms of the new article 222-23-1 of the Penal Code, resulting from law n° 2021-478 of 21 April 2021 aimed at protecting minors from sexual crimes and offences, any sexual relationship between an adult and a person under 15 years of age is henceforth considered to be rape, as soon as there is a difference in age of at least five years between the perpetrator and the victim (art. 222-23-1, para. 1, C. pén.) This offense is punishable by 20 years of criminal imprisonment (art. 222-23-1, C. pén.).
This is a major change. Thus, in certain situations, rape can now be characterized independently of the demonstration of an act of violence, constraint, threat or surprise. Clearly, as the Minister of Justice pointed out in a statement to the National Assembly on April 15, 2021, Law 2021-478 signals neither more nor less "than the abolition of the criterion of consent for sexual relations between an adult and a minor of 15 years of age. Eric Dupond-Moretti did not hesitate to describe this reform as "a historic step in the fight against sexual violence against minors".
However, according to the rules of application of the criminal law over time, this new definition of rape is not applicable to the facts of which Yannick Agnel is accused.
And for good reason, in accordance with Article 112-1 of the Criminal Code and the case law of the Court of Cassation, criminal laws instituting a new offence or extending the scope of an existing offence cannot be applied to acts committed prior to their entry into force (Crim. 28 Apr. 1981, No. 81-90.744 P; Crim. 21 Apr. 1982, No. 81-92.914 P; Crim. 15 Nov 2006, No. 06-80.655 P). This is the application of the principle of legality of offenses and penalties, guaranteed by Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789.
Since the law of April 21, 2021 is not applicable, on what legal basis can Yannick Agnel be prosecuted?
The reforms relating to sexual crimes and offenses have multiplied in recent years, so it is necessary to juggle successive versions of the texts of incrimination.
Article 222-23, para. 1, of the Penal Code, in its version in force until August 6, 2018, then defined rape as "Any act of sexual penetration, of any nature whatsoever, committed on the person of another by violence, coercion, threat or surprise." Due to the rules of application of the criminal law over time, only this definition of rape can be applied to the facts alleged against Yannick Agnel.
According to the elements of the investigation made public, nothing indicates that the Olympic swimmer is accused of any violence or threat.
With regard to surprise or coercion, the latter of which can be physical or moral (art. 222-22-1, para. 1, C. pén.), law no. 2018-703 of August 3, 2018, strengthening the fight against sexual and gender-based violence, also known as the "Schiappa" law, specifies that when a sexual assault is committed against a minor of 15 years of age, moral coercion or surprise can result from the age difference between the victim and the perpetrator and the de facto authority that the latter has over the victim. The text adds that this de facto authority can be characterized by a significant difference in age between the minor victim and the adult perpetrator (art. 222-22-1, para. 2, C. pén.).
Although these provisions were enacted after the events of which Yannick Agnel was accused, they are nevertheless applicable, as the Court of Cassation considered them to be interpretative provisions and therefore of immediate application (Cf. Crim. March 17, 2021, n° 20-86.318 P).
In this case, Lionel Horter's daughter was only 13 years old at the time of the events, as opposed to 24 years old for Yannick Agnel, i.e. a difference in age of almost 11 years between the two individuals.
A court could therefore consider this age difference not only as significant but, above all, as characterizing, between a young girl and an internationally renowned sportsman, a de facto authority from which moral constraint or surprise resulted.
This finding would then pave the way for a conviction of the swimmer for aggravated rape of a minor under 15 years of age, a crime that would subject the perpetrator to 20 years of criminal imprisonment (art. 222-24, 2°, C. pén.).
The case of Yannick Agnel is in this respect quite illustrative of the contribution of the law of 21 April 2021. Indeed, if the facts in question had been committed under the new law, Yannick Agnel would have incurred an identical sentence, without the prosecution having to characterize the absence of consent of the complainant.
Jérôme Navy ❘ Lawyer at the Paris Bar