Dominique Pélicot returned to the Mazan rape trial on Tuesday, September 17. His statements undermine those of his co-accused, while their lawyers are trying to play on a very specific legal point.
This Tuesday, September 17, was marked by the return of Dominique Pélicot to the trial. The man who is being tried for having drugged and raped his wife for about ten years, as well as having delivered her to strangers, is now fit to appear, after several days of absence due to illness. Certain adaptation conditions have been put in place for the smooth running of the hearing, including regular rest periods.
Gisèle Pélicot’s lawyers considered it essential that the main accused be present, in addition to the 50 others involved in the trial, since he is the one suspected of having orchestrated everything. This week, the Vaucluse criminal court should also resume the hearing of the first four co-accused, which began last week.
“I am a rapist, like everyone else in this room. They can’t say otherwise,” Dominique Pélicot quickly declared about them, when he returned on Tuesday. Statements that considerably penalize the defense of the co-accused, who have maintained from the beginning that they had no intention of raping Gisèle Pélicot. The lawyers assure that they did not know that she was drugged and instead thought they were participating in a libertine game. They maintain that their clients were manipulated by the victim’s husband. Dominique Pélicot’s statements change the situation for the defense of the co-accused.
An argument undermined by Dominique Pélicot’s version
Rape is defined in Article 222-23 of the Criminal Code as “any act of sexual penetration, of whatever nature, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, constraint, threat or surprise”. In this case, the means of rape was surprise since Pélicot’s wife was incapable of consenting. Rape is a crime, but according to Article 121-3 of the Criminal Code, any crime presupposes intent.
The defense put forward an argument repeated during the hearings: the accused cannot be rapists if they did not know that the victim was against sexual acts. There would be no rape if the accused did not think they were committing rape. Is this argument admissible? In French law: “the intention to rape” exists if there is awareness of imposing non-consensual intercourse on the victim. In the event of “misunderstanding” by the perpetrator, there is no intention.
So in this case, if the accused legitimately believed he was participating in a libertine game consented to by the wife, the intention to rape is no longer founded. The crime would then not be constituted because the perpetrator would not have been aware of having imposed sexual intercourse on the victim. As the analysis The Lawyers Club“this is where a paradox appears in the eyes of the non-criminal lawyer: forced sexual intercourse is not necessarily rape because if the perpetrator is not aware of forcing consent, the offence is not constituted. It is from the point of view of the perpetrator that the characterisation of the offence must be carried out, and not from the point of view of the victim”.
If this legal point exists and the defense lawyers use it, it is unlikely that the judges will retain it. The case law tends towards great firmness with regard to similar cases. The Club des juristes reminds us that “the error of fact cannot be admitted too easily. Otherwise the author would have an easy time invoking his own stupidity or gross negligence. De non vigilantibus non curat praetor as we often say in civil law: the law does not protect fools.
The judges will mainly rely on factual elements to determine whether the accused were aware that they were forcing Gisèle Pélicot to have sex. The facts already revealed undermine the defendants’ arguments. Dominique Pélicot, who admitted to organizing the rapes, clearly states that the men he brought were also “rapists” and therefore were aware that his wife did not consent. Furthermore, in the videos viewed by the judges, the victim is deeply asleep. The men were also given instructions for their arrival, such as waiting in their car until Dominique Pélicot’s wife fell asleep and not wearing perfume or smoking so as not to leave any traces of their presence.