France and rape - 40 years of reforms

Rift - Lawyers in Paris

#Rape #History #Halimi #MeToo

Article published on February 16, 2022 at 2:00 pm

By Jérôme Navy, lawyer at the Paris Bar

From the Aix-en-Provence trial in 1978 to the creation of a sexual non-consent threshold in 2021, how have successive reforms attempted to combat rape culture and its impunity?

On August 20, 1974, Anne Tonglet and Aracelli Castellano, two young Belgian tourists who spent the night in the creeks of Marseille, were raped for several hours by three men. This story, brought to the screen by Alain Tasma in the film The Rape, will mark the public opinion, highlighting the path of cross imposed to the victims of rape when they try to obtain justice.

Gisèle Halimi and the trial in Aix-en-Provence in 1978

Four years later, in 1978, the trial of the three aggressors began before the Bouches-du-Rhône Assize Court in Aix-en-Provence. At the time, the Penal Code did not define the crime of rape. The three men were defended by Gilbert Collard. On the other side, it took all the determination of the couple of young women and their lawyers, including the emblematic Gisèle Halimi, to have the case judged as a crime and thus avoid a judicial correctionalization that was then almost systematic [1]. The perpetrators, only one of whom was convicted of rape, were sentenced to 4 to 6 years in prison.

With the law of December 23, 1980, the registration of a first definition of rape

It is only with the law n° 80-1041 of December 23, 1980 [2], resulting from a proposal of the senator Brigitte Gros, that the French legislator finally included a definition of rape in our law. Article 332 of the Penal Code, in its first paragraph, now states that "any act of sexual penetration, of any kind, committed on the person of another, by violence, constraint or surprise, constitutes rape".

At the beginning of the 1990s, two changes were made by law n° 92-684 of July 22, 1992 reforming the provisions of the Penal Code relating to the repression of crimes and offences against persons. On the one hand, the crime of rape, henceforth codified in article 222-23 of the new Penal Code, saw its punishment increased from 10 to 15 years of criminal imprisonment [3]. In addition, the law adds that rape can also be characterized when the act of sexual penetration is perpetrated with the use of threats [4].

Spousal rape and the law of April 4, 2006

With law no. 2006-399 of 4 April 2006 [5], Parliament this time tackled the societal scourge of domestic violence. At that time, rape between spouses was already sanctioned by the criminal courts, but the legislator's objective was that "certain prohibitions" should be "better highlighted [...] in order to reinforce their dissuasive effect" [6].

The entry into force of the law of April 4, 2006 allows the introduction of two important provisions in the Penal Code. First, article 222-22 now specifies that rape and other sexual assaults can be constituted "regardless of the nature of the relationship between the aggressor and his victim, including if they are married", thereby ratifying the position of the Criminal Chamber of the Court of Cassation, which had already recognized that rape did not exclude "acts of sexual penetration between persons bound by marriage" [7]. Above all, and this is where the real evolution lies, the legislator decided to establish the bonds of marriage, as well as cohabitation or PACS, as an aggravating circumstance for the crime of rape. From now on, when the aggressor and his victim are united by such ties, rape is punished not by 15 but by 20 years of criminal imprisonment [8]. With the 2006 law, the prohibition of rape within a couple is thus reaffirmed and its repression is aggravated.

With the Schiappa law of 2018, the expansion of rape to acts committed "on the person of the perpetrator"

The year 2018 will mark a turning point in this chain of reforms. Until then, the legislator had added certain aggravating circumstances to rape and had increased the repression. But the definition of rape had remained virtually unchanged since 1980. By passing Law No. 2018-703 of August 3, 2018, known as the Schiappa Law, Parliament will break with this legal conservatism and engage in a gradual expansion of the material scope of rape.

Since the entry into force of the Schiappa law, the crime of rape is thus no longer limited to the act of sexual penetration "on the person of another" but also extends to that "on the person of the perpetrator" [9]. What does this mean? That since August 6, 2018, the date of entry into force of this law, rape can also be characterized when a person performs, by force, fellatio on a man.

Similarly, rape is now constituted when a woman imposes on a man a sexual relationship with penile penetration. Until then, these two situations were not criminally qualified and could only be prosecuted on the basis of the tort of sexual assault other than rape [10].

#BalanceTonBar and the consideration of the phenomenon of chemical submission

The second notable advance is that our criminal law finally tackles rape by chemical submission. The Schiappa law creates article 222-30-1 of the Penal Code, which makes it an offence punishable by 5 years' imprisonment and a fine of 75,000 euros [11] to use psychotropic substances with the aim of committing rape or sexual assault. When the perpetrator succeeds, the use of drugs becomes an aggravating circumstance, increasing the penalty to 20 years of imprisonment [12]. The legislator's objective was obviously to fight against the use of GHB [13], commonly referred to as the "rapist's drug", as well as against other sedatives, hypnotics or depressants used to sexually abuse a victim. However, the subject remains topical, as evidenced by the #BalanceTonBar and #MeTooGHB movements that have recently emerged on social networks, aiming to put an end to the sexual violence permitted by the surreptitious administration of psychotropic substances in bars and discotheques.

The introduction of a "Statutory rape" in French law

Law n° 2021-478 of 21 April 2021, aimed at protecting minors from sexual crimes and incest, is still part of the enlargement of the material scope of the offence, but this time marks a change of approach and a historical evolution.

This provision, which came into force on 23 April 2021, makes sexual relations between an adult and a minor of 15 years of age a rape [14]. The only condition, sometimes referred to as the "Romeo and Juliet clause", is that the age difference between the perpetrator and the victim be at least five years. As soon as this age difference is verified, rape between an adult and a minor of 15 years of age is characterized, without it being necessary to demonstrate the absence of consent of the victim. With this law, the legislator establishes as a principle the incapacity of minors of 15 years of age to consent to a sexual act with an adult, thus creating an equivalent of "statutory rape" in French law. Until then, it should be remembered that the Court of Cassation systematically required "the total absence of consent of the victim" to characterize rape [15].

This legal and societal revolution comes in the wake of the Julie case, which received media attention in 2019, in which several Paris firefighters were accused of raping a teenage girl, who was only 13 years old at the time. Initially prosecuted for aggravated rape, the facts were finally reclassified as sexual abuse of a minor, as it was not possible to characterize the absence of consent of the young girl [16]. This reclassification allowed the firemen to avoid criminal qualification, provoking indignation from a part of the public opinion, with many people relaying the hashtag #JusticePourJulie on social networks.

The extension of rape to oral acts

In addition to the introduction of a threshold of sexual non-consent, the law of April 21, 2021 also brings a second major change to the crime of rape. It should be remembered that, until then, rape presupposed in any case the demonstration of an act of sexual penetration. In a noteworthy decision of October 14, 2020, the Criminal Division, which had to rule on the penal qualification to be adopted in the case of cunnilingus, had thus approved the decision of an investigating chamber, which had rejected the qualification of rape on the grounds that the accused's tongue had not gone beyond the "edge of the vagina" [17].

This subtle casuistry will no longer be necessary. Any oral-genital act, as long as it is committed by violence, constraint, threat or surprise, can now serve as a basis for a criminal qualification of rape [18]. 18] In other words, any forced contact between the mouth of one person and the genitals of another may now fall under this expanded definition.

Figures and statistics on rape: a conviction rate of less than 1%

It must be noted that rape is nowadays legally plural and changing, and must also be understood with regard to the rules of application of the criminal law over time and the statute of limitations. While certain reforms seemed necessary, the judicial aspect continues to be lacking. While the average number of rapes and attempted rapes committed each year in France is estimated at 112,000 [19], there are barely more than 1,000 convictions per year [20]. In 2019, only 17% of rape victims filed a complaint [21].

Jérôme Navy ❘ Lawyers at the Paris Bar

[1] Jean-Yves Le Naour and Catherine Valenti, Et le viol devint un crime, Vendémiaire, Paris, 2014.

[2] Law n° 80-1041 of December 23, 1980 on the repression of rape and certain indecent acts.

[3] Art. 222-23, 2nd paragraph, C. pén.

[4] Art. 222-23, para. 1, C. pén.

[5] Law n° 2006-399 of April 4, 2006 reinforcing the prevention and the repression of violence within the couple or committed against minors.

[6] Explanatory memorandum of the law n° 2006-399 of April 4, 2006.

[7] Cass. crim. 5 Sept. 1990, n° 90-83-786 P

[8] Art. 222-24, 11°, C. pén.

[9] Art. 222-23, para. 1, C. pén.

[10] Cass. crim. 21 Oct. 1998, n° 98-83.843 P and Cass. crim. 22 August 2001, n° 01-84.024 P.

[11] Art. 222-30-1, para. 1, C. pén.

[12] Art. 222-24, 15°, C. pén.

[13] Gamma-Hydroxybutyric acid.

[14] Art. 222-23-1, al. 1, C. pén.

[15] Cass. crim. 20 June 2001, n° 00-88.258

[16] Cass. crim. March 17, 2021, n° 20-86.318 P

[17] Crim. 14 October 2020, n° 20-83-273

[18] Art. 222-23, al. 1, C. pén.

[19] "Living environment and security" survey report 2019, p. 185.

[20] Figures for 2019, from the Ministry of Justice.

[21] "Living Environment and Security" Survey Report 2019, p. 185.