Campaigners are demanding French rape laws be changed to include the word “consent” after judges handed down sentences in the Gisèle Pelicot case.
They say the case, in which Ms Pelicot’s husband recruited dozens of strangers to rape her while she was drugged unconscious, proves the current legislation is insufficient.
“France can no longer maintain its legislation as it stands, and must at last clearly integrate the notion of consent into the offence of rape,” said Audrey Darsonville, a criminal law professor.
She said the country was flouting its European obligations by not doing so and faced a string of legal cases on the issue in the coming months.
“France must force the defendant to prove they verified that a plaintiff gave free and informed consent. That’s not currently the case,” she told The Telegraph.
French criminal law defines rape as a penetrative act or oral sex act committed on someone using “violence, coercion, threat or surprise”. It makes no clear mention of the need for a partner’s consent and prosecutors must prove the intention to rape to secure a guilty verdict.
Ms Pelicot, appearing for sentencing, waived her anonymity to bring the full scale of the horror to the world’s attention – Alexandre Dimou/Reuters
Ms Darsonville, like others, would like France to emulate English law, which specifically defines consent as by a person who “agrees by choice, and has the freedom and capacity to make that choice”.
Prosecutors in England must consider whether a complainant had the capacity (that is the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
They must also decide “whether he or she was in a position to make that choice freely, and was not constrained in any way”.
Carole Hardouin-Le Goff, a law professor who specialises in sexual violence, also saw the need for explicit consent – known as “positive consent” or “only yes means yes” – for sexual acts to be enshrined in French law, as it has been in Canada and Spain.
France, she pointed out, has ratified the Istanbul Convention, which states that consent should be in the law.
The issue of consent has loomed large from the start of the Pelicot trial and its absence from legislation has been exploited by defence lawyers.
Gisèle Pelicot’s image has become an icon for women in France and around the world – Abdul Saboor/Reuters
“In France, it’s not necessary to have obtained the victim’s consent, to necessarily ensure that there is no rape,” said defence lawyer Guillaume De Palma in the opening days of the trial. “In order for there to be rape, the guilty intent of the perpetrator must be demonstrated.”
None of the defendants confirmed they had asked for any kind of consent from the inert victim.
Despite damning video evidence against them, at least 35 of the defendants denied aggravated rape charges, claiming that Dominique Pelicot tricked them into believing they were taking part in a sex game, or that Gisele Pelicot was feigning sleep.
“I’ve seen individuals take the stand, most of them denying rape. I want to say to these men: at what point did Mrs Pelicot give you her consent when you entered this room? At what point do you become aware of this inert body?” asked Ms Pelicot.
Others said that the husband’s consent applied to his wife. “As the husband had given me permission, as far as I was concerned, she agreed,” said Andy Rodriguez, a defendant.
“The problem in France currently is if a defendant says: ‘I didn’t intend to rape, I intended to have a sexual relationship with someone I thought was consenting.’ It’s a completely legal act and thus very hard to convict someone,” said Ms Darsonville.
Ms Pélicot points to a picture of herself by a graffiti artist in Avignon with the legend: ‘Gisèle, women thank you.’ – Christophe Simon/AFP via Getty
The push for consent-based legislation on rape had already gained significant support in France before the Pelicot trial. In a November 2023 Ifop poll, 89 per cent of respondents were in favour of updating the legal definition of rape.
Last year, France opposed an effort to make non-consensual sex a criminal offence across the European Union. But Emmanuel Macron, France’s president, later said that, while he opposed legislating at an EU level on the issue, he did favour new legislation in France.
Didier Migaud, the justice minister of Michel Barnier’s government, also recently backed the change.
“This lawyer is proving us right that the law needs to be changed, and the question of consent needs to be written down in black and white in the penal code, and defined in the penal code,” agreed Aurore Bergé, the outgoing equality minister.
But other legal experts and women’s rights activists said consent puts scrutiny on the victim’s behaviour and words, rather than on the accused, and that a person can say “yes” without wanting to.
Anne-Cécile Mailfert, a feminist who runs La Fondation des Femmes, said English law on rape should not be seen as a model as it is based “largely on the consent of the victim, which is the hardest thing to prove”.
A courtroom sketch shows Ms Pélicot listening to her former husband’s testimony – Valentin Pasquier/AP
She asserted consent law is a key factor in the “catastrophic” conviction rate in the UK. There is a one per cent chance of a reported rape ending in a conviction, according to recent figures.
“The Pelicot trial shows that French law poses no problem. As soon as you drug someone, it’s de facto rape by surprise,” so the notion of consent is taken into account, Ms Mailfert argued.
In France, only 6 per cent of rape cases go to court and even then very few end in convictions – last year there were 2,083 out of 36,000 complaints.
“But that’s not because of the definition of rape,” she said.
“The real problem is resources for proper investigations, overcrowded prisons and judges encouraged to drop cases that aren’t clear-cut,” said Ms Mailfert. She also blamed enduring prejudice among male judges.
She added: “Above all, the Pelicot trial has highlighted the evils of toxic masculinity and rape culture in society.”
In her final testimony last month in Avignon, Ms Pelicot, 71, insisted the trial was about changing “the way we look at rape”.
But just how that is translated into law remains a hotly contested issue.