Rape: what would introducing consent into the law change?

“I will enshrine it in French law. » On Friday 8 March, after the sealing ceremony which ratified the inclusion in the Constitution of the freedom to resort to abortion, President Emmanuel Macron was questioned by the feminist association “Choose the cause of women”, founded by Gisèle Halimi, on the theme of including the notion of consent in the law. The head of state said he was willing to change the law.

France is reluctant to reach a European consensus on the issue

In recent months, however, he has opposed a legal transformation on a European scale. While the Member States of the European Union were negotiating a first directive on sexual and gender violenceaimed at harmonizing countries’ criminal responses to genital mutilation, forced marriages, the disclosure of intimate videos or even online harassment inflicted on women and girls, Emmanuel Macron did not want this European directive to extend to rape.

The initial bill contained one article (number 5, abandoned following negotiations) that agreed on a common definition based on the absence of consensus. This would mean that victims would no longer need to provide evidence of the use of force, threats or coercion. It was based on the concept “Only yes means yes”, a legal principle already applied in 14 member countries, including Spain and Sweden. The idea: There must be clear consent before any sexual contact.

In Sweden this principle has proven itself. Swedish criminal law requires that a “freedom will be clearly expressed” and passivity cannot be considered a sign of voluntary participation. According to Grevio (the group of experts on combating violence against women and domestic violence), since the implementation of this definition, Sweden has observed an increase in the number of complaints, prosecutions and convictions. More specifically, the conviction rate increased by 75%.

Make rape a eurocrime?

Emmanuel Macron opposed this common definition, arguing that the European Union could not be competent to legislate on this type of crime. Today, Article 83 of the Treaty on the Functioning of the European Union (TFEU) establishes a limited list of Eurocrimes which “entering a crime area particularly serious and have a cross-border dimension”for which the EU has legal competence and which currently does not include rape.

On Friday 8 March, the Head of State once again defended this position, however opening the door to legal developments on a national scale: “I didn’t want us to enter into a definition of eurocrime. He wasn’t in Eurocrime, because he doesn’t fit into that category at the moment.” esteemed head of state, “on the other hand, let’s integrate it into French law (…) I understand it perfectly.”

What would change if you included consent in the definition of rape?

In French law, rape is now a crime defined by articles 222-23 of the Penal Code. It constitutes a rape “any act of sexual penetration, of any nature, or any oral-genital act committed on the person of another or on the person of the offender by violence, coercion, threat or surprise ».

For feminist associations this definition poses a problem for several reasons. Yes, becauseit does not reflect the experiences of victims. For example, it does not take into account the phenomenon of amazement, felt in many cases, and demonstrates the legal and social ignorance that remains regarding sexual violence. Last December a group of lawyers, authors and judges also argued that the current definition “presupposes implicit consent”. This supported the need to clearly include the absence of consent as a way of qualifying rape in the law.

“We are told that (…) taking consent differently in our Criminal Code would penalize the victims, on whom the burden of proof would then fall (i.e. proving that they did not consent) “. Gold, “ignores that the current definition presupposes implicit consent to any sexual act and that it transmits stubborn stereotypes”. And to add: “This argument also ignores that to establish these material elements, justice essentially examines the behavior of the victims”.

This change in definition also offers hope to victims, who too often are unsuccessful in the courts. In fact, according to the High Council for Equality, 80% of rape complaints are rejected.

“If it does, that’s good news”Violaine Lucas, president of the association, commented to AFP Choose the cause of women. “This will allow us to delve deeper into what Gisèle Halimi began to do in 1978 during the Aix-en-Provence trial.in reference to the trial that contributed to having rape recognized by law as a crime.