Sex without consent is rape: a turning point in civilization in France thanks to the Gisèle Pélicot case

Gisèle Pélicot’s courageous battle against silence and rape culture marked a decisive turning point, giving voice to all women victims of violence and imposing a new standard of justice.

For this reason, today is a special day in France: Parliament has definitively approved an amendment to the penal code which inserts the notion of “consent” into the definition of rape and sexual assault.

If it was previously stated that rape was any act of sexual penetration committed through “violence, coercion, threat or surprise“, now the text says it’s rape “any non-consensual sexual act”, effectively making the consent of the people involved the determining factor that distinguishes a sexual relationship from violence.

The case of Gisèle Pélicot

The shortcomings of French law emerged sensationally during the trial which centered on the story of Gisèle Pelicot, the woman who suffered sexual violence for years from her husband and other men without her consent and moreover while she was unconscious. The violence suffered did not fit into the four categories established by law (violence, coercion, threat or surprise), even though it was clear that it was rape. The heated debate that followed the case, together with the continuous commitment of feminist movements and left-wing political forces, contributed significantly to the approval of the new legislation.

The proposed amendment was put forward by the deputies Marie-Charlotte Garin (Les Écologistes) e Véronique Riotton (Renaissance, Macron’s party). After being approved by the National Assembly, it also obtained the green light from the Senate with 327 votes in favor, while 15 deputies abstained.

A “free, informed, specific, preventive and revocable” yes

The new law establishes that consent must be “free, informed, specific, preventive and revocable”, and clarifies that it cannot be inferred from the silence or lack of reaction of the person involved. In essence, consent must always be explicit and conscious for every sexual act.

The previous law, in fact, excluded many cases of sexual violence, especially those that occur in family or friend contexts, where there are no obvious threats or physical coercion. In these cases, violence often manifests itself through psychological pressure that immobilizes the victim, a phenomenon known as “freezing” (freezing), which can be misinterpreted as implied consent.

It hasn’t been an easy path: French politics has discussed the issue for years, and it took parliament more than a year to reach final approval. Initially, many parties, even on the left, were sceptical, fearing that the new law could put women who report rape in difficulty by forcing them to prove that they had not given consent and focusing attention on their behavior rather than on the attacker. However, in March the Council of State had given a favorable opinion to the proposal, and today a consensus prevails among experts and feminist associations that the introduction of the concept of consent represents an important step to more effectively combat gender violence.

The concept of consent, already present in the Istanbul Convention of the Council of Europe, which France ratified in 2014, establishes that consent must be “voluntary” and assessed based on the situation and context. The European Court of Human Rights had repeatedly warned France for failing to adapt its legislation to the Convention.

With the passage of the law, France joins a growing number of countries that have reformed their criminal codes with the notion of consent at its centre, including Canada, Sweden, Spain, Norway, Denmark, Slovenia, Iceland and Greece. Unfortunately, Italy, despite having ratified the Istanbul Convention in 2013, has not yet introduced the concept of consent into its legislation on rape.