France Debates Adding a Missing Word to Its Rape Law: Consent

New York Times

01-04-2025

Many countries require that consent be given before sex — and have written that into their rape laws. France is not among them.
Now, two lawmakers hope to change that. Debate has begun on their bill, and a vote, in the powerful lower house of the French Parliament, is expected on Tuesday.
Their cause has gained traction after a horrific trial last fall in which dozens of men were convicted of raping Gisèle Pelicot while she was in a deeply drugged state.
If the bill passes, it would then go to the Senate.
Here is some background on why the change is being suggested and who objects.
How does France define rape?
French law defines rape as any form of sexual penetration committed on another person — woman or man — by violence, constraint, threat or surprise. The lawmakers want to expand that definition by including nonconsensual penetration.
The bill states that consent implies that it is 'given freely' and stipulates that it 'can be withdrawn before or during the sexual act.'
It also states that consent 'cannot be inferred from silence or absence of resistance' and says that true consent cannot be given when a person is in a 'situation of vulnerability.
Why change the definition?
Marie-Charlotte Garin, one of the two lawmakers proposing the change, said that experts report that up to 70 percent of rape victims freeze or dissociate during sex, rendering them incapable of resisting.
Yet a lack of resistance is often perceived by the courts as permission. Catherine Le Magueresse, a legal scholar and proponent of the change, said, 'We have court decisions where it is written, 'In the absence of resistance from Madame, Monsieur could not have been aware of raping her.''
In most rape cases, attackers' main defense is that they believed the plaintiff wanted to have sex, Ms. Le Magueresse said.
'We would be adding a safety step for women, and then he couldn't even say, 'I thought she agreed,'' added Ms. Le Magueresse, author of the book 'The Consent Traps.'
Other backers of the change say it would broaden the lens of police investigations to look into whether the accused actively sought and acquired the consent of the plaintiff, instead of mostly looking for proof of her resistance.
And, perhaps most important, they believe it will reduce the level of impunity when it comes to the crime in France.
Do other countries include consent in rape laws?
Yes. Here is a sampling.
In Canada, the definition of rape has included affirmative consent since 1983.
In Europe, the real push to include consent in the penal code occurred after the arrival of #MeToo in 2017. Since then, the number of European countries including consent in their laws has grown to 20 from seven, according to a 2024 report in the International Journal of Law, Crime and Justice.
Why are some activists against including consent in the law?
Among those against the change are some feminist activists and lawyers. They say it will actually make things worse for victims by keeping investigators' attention on victims' actions rather than on those of the accused.
'It's a total trap,' said Lorraine Questiaux, a lawyer who focuses on defending female victims of violence. 'Rape has nothing to do with consent. It is about domination.'
The French feminist philosopher Manon Garcia, who has published a book about the Pelicot trial, said changing the law would not fix the deeper social problems the case exposed.
What's needed is not 'a small change in the legal definition of rape,' she said during an interview with the radio station France Culture. 'It's having funds for the police, funds for the justice systems, funds for education, educating little boys and men to be introspective and put themselves in other people's shoes, to understand that women are human beings they can love.'
How did the Pelicot trial affect the debate?
The Pelicot case stunned France. Ms. Pelicot's ex-husband was convicted of inviting other men to join him in raping her after he had drugged her into a stupor. The court also convicted the 50 other defendants, most of them on rape charges.
French jurisprudence already holds that penetrating someone who is drugged or asleep is automatically rape.
Still, the head judge, Roger Arata, asked one defendant after another if they believed Ms. Pelicot had consented to sex. Many admitted that they had never spoken to her and said that they believed her husband consented for her, a shock to many in France.
'We would not be here without the Pelicot trial,' Ms. Garin, the lawmaker, said. 'It revealed how big rape culture is in France and, because of that, it became politicly unacceptable to not change something in the law.'