“For me, she agreed.” It was with these words that Andy R. tried, at the end of September, to justify his action before the Vaucluse criminal court. The man, accused with fifty other people of having raped Gisèle Pélicot when she had been previously drugged by her husband Dominique, cites a supposed “couple’s delirium” to justify himself. as reported by France Info. The “permission” of Dominique Pélicot, present in the room during the rapes, would have been enough for him to ignore the snoring of the septuagenarian, her inanimate body and, of course, her lack of clear consent. The thirty-year-old is not the only one to try to clear himself in this way. “I thought she was an accomplice”; “I took consent from her husband”; “I haven’t asked myself the question once,” other defendants admitted, placing this question of consent at the heart of this historic trial.
According to honorary magistrate Marie-Pierre Porchy, former investigating judge, children’s judge and vice-president of the Lyon high court, this case, which has become “the symbol of the arbitrary act of men on a woman” , could lastingly change awareness about the judicial treatment of the notion of consent. In his work Consents, the truths of a judgewhich will be published on October 24 by Éditions Mareuil, the magistrate widely discusses this notion and its application in criminal cases, the absence of a clear definition in the Penal Code, the consequences of this legal vacuum for the accused and the victims, and possible avenues for an evolution of the law. Interview.
L’Express: First of all, what is consent and how is this notion defined by law in rape cases?
Marie-Pierre Porchy: This term is extremely broad, and very difficult to define, since consent can be fluid, multiple, given then withdrawn, granted under certain conditions and not others… And everyone places their cursor where they want. For some, this or that behavior and this or that word will indicate that there was consent, while others will have a different analysis. This is also why the term is put in the plural in the title of my book. The problem is that the law currently does not address consent in the context of rape and sexual assault. This is the whole question: should this notion be included in the law or not?
Currently, judges base themselves on the definition of rape 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 , coercion, threat or surprise”. The notion of coercion as a constituent element of rape allows us to put the spotlight on the behavior of the perpetrator – what strategy did he use to coerce and obtain the sexual act? – but in no case on the notion of consent – what happened in the victim’s head and in the course of events to make her reject the sexual act? There is therefore a legal vacuum on the issue, and a cry from women around the world to take this notion into account. This is why it would seem interesting to me to change the text, which is currently insufficient. For example, it would be interesting to evoke the notion of “lack of manifest desire to participate in the act or the impossibility of showing agreement” as a constitutive element of rape.
Why not talk clearly about “consent”?
There is an image that comes to mind: if we only use the term consent, don’t we risk analyzing only the size of a victim’s skirt? Or an element at a given moment of his behavior? In my opinion, it will be quite easy to turn this notion against the victim. Defendants will say: “She had a mini-skirt, so she was consenting”; “She hit on me first, so she was willing”; “She said yes to sex with a condom, I therefore considered that she consented to sex without”, and so on… While the notion of absence of manifest will would invite us to take into consideration a set of facts in a much broader way: the acts, declarations and behavior of the alleged perpetrator before, during and after the facts, those of the victim… All forms of non-consent or coercion could thus constitute the offense – including the inability to clearly give consent.
In certain cases of rape or sexual assault, the accused sometimes mention the existence of a “gray zone”, and are convinced that they have obtained the consent of the victim – which the latter refutes. Due to a lack of material evidence, we then hear about the famous “word against word”. How to judge this type of case?
When we investigate this type of case, we must precisely refuse this expression of “word against word”. What counts is not only the words, but the putting into perspective of all the elements which allow conviction in one direction or another. When the investigation begins and we consider indicting someone, there is a term that must be remembered: that of the existence of serious and/or consistent evidence. To overcome this notion of “word against word,” it is therefore necessary to educate a lot: to seek out investigative elements, to have the premises checked, to hear the witnesses, and then to go in one direction or the other. The problem is that magistrates do not always have the time or the desire to do it. These cases, it must be said, are not the passion of the judges, who prefer serious crime cases. Many say to themselves that there will be doubt whatever, that the case will be closed, and that there is no point.
Recently, several court cases – such as the Mazan affair – shed light on the notion of consent, which has become a social subject. How do you think this type of trial can raise awareness?
For Mazan, it must be said that Gisèle Pélicot’s great merit is to have refused to go behind closed doors. Suddenly, this woman becomes a symbol of the arbitrary act of men on a woman, without her ever being able to give her consent. From a purely legal point of view, the absence of the notion of consent in the law will not really have an impact in this case, since the notion of constraint – already existing in the texts – will be more than enough to convict most of the accused.
In this case, it is precisely on the notion of consent that some defendants are trying to defend themselves, citing having obtained consent from the husband, or not having known that Gisèle Pélicot was drugged… Is this position tenable in law?
With the existing law, what will be looked at is not the question of consent, but that of intention – the only one of the two to currently constitute rape. Some accused defend themselves by indicating that they did not “intend to rape”, since they did not “know” that the victim was asleep or non-consenting. Which could be retained in certain cases, particularly for videos in which the victim appears not to be quite asleep… This is where the context is extremely important: as I said earlier, the judges will having to take into account all the elements they have in their possession. Did the victim look asleep, can we seriously think she was pretending to be asleep? Why were men asked to undress outside, not to wear perfume, not to smoke? The magistrates will view the hundreds of videos available, the exchanges of messages, some of which even mention “rape mode”, interview all the witnesses… And draw conclusions on the existence of serious and/or consistent evidence in this case.
Does this type of case allow for an evolution in the judicial treatment of rape and sexual assault?
Sometimes yes. For Mazan, I’m not sure: I think that this case completely goes beyond the legal question and the debate around the notion of consent. We are rather dealing with a general question of respect for women. For this matter specifically, I am not sure that we need to change the law. But I think it causes an awareness within society which is very interesting.
You write in your book “to believe intimately in the structuring power of the law on our mental structures”. In your opinion, could a better definition of consent and rape in the law limit these acts?
I have the weakness to think that the law in fact structures our private behavior. By defining prohibitions, it defines our spaces of freedom. That’s what makes us stand out. Twenty years ago, I wrote about the absence of a ban on incest in the law, and I was firmly convinced that this was not an oversight by the legislator. It was a marker of a society that was not yet ready to accept that sexual relations between an adult and a minor should be fundamentally prohibited and illegal before the age of 15, and before the age of 18 in an incestuous context, as provided for in the 2021 law. It is the same thing for the notion of consent: we perhaps need this collective awareness for an evolution of the law, which would undoubtedly act on our structures mental.
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