Consent: Proposal to amend the definition of rape and sexual assault, adopted in France

Below is an article written by a prosecutor from the Rennes Public Prosecutor’s Office, which offers a less favorable perspective on the proposed amendment to the definition of rape and sexual assault, adopted in France by the National Assembly on April 1 and by the Senate (amended version) on June 18, both at first reading.

Although there are some points of disagreement, the two chambers are unanimous in holding that:

– The definition of sexual assault is being amended such that the phrase

“any sexual contact committed through violence, coercion, threat, or surprise” is replaced with “𝐨𝐫𝐢𝐜𝐞 𝐚𝐜𝐭 𝐬𝐞𝐱𝐮𝐚𝐥 𝐧𝐞𝐜𝐨𝐧𝐬𝐢𝐦𝐭̦𝐢𝐭 committed against another person 𝐬𝐚𝐮 𝐚𝐬𝐮𝐩𝐫𝐚 𝐩𝐫𝐨𝐩𝐫𝐢𝐞𝐢 𝐩𝐞𝐫“harm”;

– The concept of consent is explained: “For the purposes of this section, consent must be freely given and informed, specific, prior, and revocable. It is assessed based on the context. 𝐍𝐮 𝐩𝐨𝐚𝐭𝐞 𝐟𝐢 𝐝𝐞𝐝𝐮𝐬 𝐝𝐨𝐚𝐫 𝐝𝐢𝐧 𝐭𝐚̆𝐜𝐞𝐫𝐞𝐚 𝐬𝐚𝐮 𝐥𝐢𝐩𝐬𝐚 𝐝𝐞 𝐫𝐞𝐚𝐜𝐭̦𝐢𝐞 𝐚 “There is no consent if the sexual act is committed through violence, coercion, threat, or surprise, regardless of their nature.”;

– The definition of rape is expanded to include oral and anal acts.

The author of the article (written before the Senate adopted the text) raises several concerns, including those related to:

– legislative technique (it is debatable whether the amendment also applies to the crime of rape—an issue that I do not see being resolved even by the Senate);

– compliance with the constitutional principles of necessity and legality of criminalization – from the perspective of non-retroactivity, but also of lack of clarity (“the fact that the terms in a text are known or familiar does not protect it from review, as happened in the case of sexual harassment or incest, on the grounds that the concept of ‘family’ was not sufficiently precise”);

– difficulties in proving consent (“the mere fact of failing to take sufficient precautions to ensure that consent exists may be enough to classify the act as rape or sexual assault”);

– an implicit ban on sadomasochistic relationships.

It is, of course, just one perspective—a traditionalist one, at that (see the suggestion at the end of the article)—but I believe that a practitioner’s concerns contribute to the discussion that has been taking place in recent years on this topic, which is becoming increasingly relevant here as well.

You can read the article here: https://www.dalloz-actualite.fr/…/question-sur…

The legislative process for the proposed bill is available here: https://www.assemblee-nationale.fr/…/definition_penale…

I would also like to mention the conference on consent held in December 2022 at the Faculty, the full recording of which is available here: https://www.youtube.com/watch?v=w0xcr4GvW0s

And the post about the recent, somewhat similar change in Norway: https://www.facebook.com/share/p/14E5uiWT2oG/