The French parliament has voted to add consent to the country’s rape law in a historic move sparked by the mass rape of Gisèle Pelicot.
The change, which will still need to be signed off by President Emmanuel Macron, will bring French legislation in line with many other European countries.
French criminal law currently defines rape as any kind of sexual penetration committed using “violence, coercion, threat or surprise”. It does not specifically mention consent.
But after the change the criminal code will define rape or sexual assault as “any non-consensual act”. It states consent must be “informed, specific, prior and revocable” and “cannot be inferred solely from the silence or lack of reaction of the victim”.
It also includes the previous definition, stating: “There is no consent if the sexual act is committed with violence, coercion, threat or surprise, regardless of their nature” and encompasses oral and anal acts of penetration not currently explicitly stated in legislation but enshrined in jurisprudence.
The bill had already been approved last week by the National Assembly, the lower house of parliament, by a large majority. Only members of the far right opposed the change. It was approved by the upper house, the Senate, on Wednesday. Senators voted 327-0 in favour of the bill, with 15 abstentions.
After the vote, Marie-Charlotte Garin, a green MP, who had pushed for the law change in parliament, said: “When it’s no, it’s no. When it’s not no, that doesn’t mean yes. And when it’s yes, it must be a real yes … Giving in will never be consenting again.”
The push to include consent in the law was driven by last year’s trial of Pelicot’s former husband and 50 other men convicted of raping or sexually abusing her. Over almost a decade, Dominique Pelicot had drugged his wife to a near comatose state and invited strangers he met on an internet chatroom to rape and abuse her in the couple’s home.
All those accused were convicted – and one who had appealed against the ruling had his conviction upheld earlier this month. But the case threw a spotlight on a grey area of the law. Many of the accused argued they were not guilty of rape because they had believed Gisèle Pelicot was asleep and they were taking part in some sort of game.
Catherine Le Magueresse, a legal expert and supporter of the new law, said the bill would encourage young men and women to consider the “reciprocity of desire”.
Many in France have argued the question of consent is a false flag and that rape is best understood not as a consensual or non-consensual sexual act, but a predatory one. They have argued focusing on consent places the victim at the centre of an investigation and not the alleged rapist.
“Consent is the wrong issue. It places the emphasis once more on the victim, not the rapist,” Anne-Cécile Mailfert, founder of the Fondation des Femmes, said during the Pelicot trial last year.
“We are calling for a comprehensive law against sexual violence that would address the impunity allowed by our institutions, including a systematic investigation of rape complaints, a ban on investigations into the victim’s sexual past … a law that would provide a framework and the means to act and protect [rape victims].”
Gisèle Pelicot’s lawyer, Antoine Camus, was also dubious about changing the law to include consent, fearing it would “backfire” on victims. “What exactly is consent in sexual matters? To any sexual act, or to one in particular?” he said last year. “Our definition of rape is not perfect today, but it has the merit of not falling into this trap.”
