Today, my inner lawyer is writing. Brace for impact, this article will be long and painful. There must be a before and after the Pelicot trial.
The trial is ongoing – it will last a few more days – and even if I am by principle reluctant to discuss ongoing cases that have not yet been judged, I must add my voice to the other voices that wish to see an evolution of French law on the criminal definition of rape.
For the record, I am speaking here only as a lawyer, a woman and a feminist: I am not the counsel to any of the parties involved in the trial of the Mazan rapes – which I prefer to call Pelicot rapes, out of deference to Gisèle Pelicot who refused the closed-door hearing offered to the victim and who wanted the debates to be public – so that they would set a precedent in law and society.
I can only applaud (and be absolutely amazed) by Gisèle Pelicot, who is clearly driven by the pursuit of a public interest objective and who is ready to sacrifice her private life for it. I fully subscribe to the will of this strong woman – whose speech is extremely articulate and perfectly clear – who has decided to turn lead into gold, using her own ordeal to perhaps succeed in moving the lines at the national level. The trial, which has been labeled a “major trial” with resources and infrastructure worthy of an extraordinary case – has a national and international media impact and I want to believe that it will lead to a legislative change in France on the criminal definition of rape.
For the record again (trigger warning, I will now discuss the concepts of rape and chemical submission): Dominique Pelicot is accused of having drugged his wife Gisèle between July 2011 and October 2020 in order to rape her and have her raped by dozens of strangers in their marital bedroom. She suffered more than 200 rapes and while most of them were perpetrated by her (now ex) husband, 92 were committed by 72 complete strangers invited to the marital home – some coming back several times.
Surprised by a diligent supermarket security guard (“not all heroes wear capes”) while he was filming under women’s skirts, Dominique Pelicot was arrested by the police (once again, “not all heroes wear capes” because it could have stopped there) who searched his home, seized his computer and discovered hundreds of photos and videos of his wife Gisèle, visibly inert and in a state that would later be described as close to coma – sexually penetrated by several dozen men.
I must write here “penetrated” and not “raped” since the presumption of innocence applies and the co-accused who appear before the Criminal Court of Vaucluse in Avignon are presumed innocent until the verdict is rendered.
The notion of Gisèle Pelicot’s consent is precisely at the heart of the legal debates of this trial.
Dominique Pelicot admitted from the first days of the trial that he had repeatedly raped his wife, having previously drugged her with anxiolytics. This recognition of the facts gives Gisèle Pelicot the indisputable status of victim – this cannot be debated with regard to – at least – her ex-husband. The Pelicot trial touches on a taboo that is still very present in our societies, that of marital rape – a notion that does not seem to be well integrated into people’s minds yet, even though it is in the French Penal Code.
Worse, some co-accused considered, during the interrogations conducted during the investigation, that the husband’s consent alone was enough to dispose of the body of his wife. Dominique Pelicot also claimed that his 50 co-accused of rape were perfectly aware of Gisèle’s chemical submission, which some of them dispute.
Thirty-five of the co-accused disputed the facts, declaring that they had neither the intention nor the awareness of committing rape, thinking that it was a libertine game of the Pelicot couple – Gisèle Pelicot pretending to be asleep during the sexual acts. The laborious admission by some of the co-accused of rape without the intention of inflicting it has been raised several times and cannot succeed because there is not, contrary to what has been said “rape and kind of rape”, there is just rape or consent.
Some of the accused also mentioned the fact that they were frightened by Dominique Pelicot and that they performed the sexual acts on Gisèle Pelicot under the domination from her ex-husband, whom they described as domineering.
Another stated that he was probably drugged by Dominique Pelicot before performing the sexual acts.
Finally, another one considered that he performed an act of charity because “it pleased the couple”. After viewing the video taken by Dominique Pelicot of his wife lying inert and choking during a forced fellatio, the said co-accused laboriously admitted that he had pleased Dominique Pelicot, not Gisèle Pelicot.
At this point, we must talk about viewing the videos.
The President of the Court initially refused to allow the videos taken by Dominique Pelicot to be viewed publicly, considering that their written transcription was sufficient. He finally reverses his decision on October 4, 2024. The defense lawyers cry out about the lack of respect of the defense rights and the media lynching (even though one of the defense lawyers herself makes Instagram videos that are particularly dubious from an ethical point of view and which, to my humble opinion, respect neither the dignity of the victim nor that of the debates) – but the fact is that public viewing is restored on October 4, 2024.
Why is this public viewing important? Far from satisfying a creepy curiosity (generally speaking, the people present at the hearings are extremely embarrassed and often close their eyes), the unbearable viewing of the videos allows to correlate the narrative proposed by the accused (the defense arguments developed on the libertine game of the Pelicot couple, the fear inspired by Dominique Pelicot or even the chemical submission that one of the accused allegedly suffered) with their behavior at the time of the performance of the sexual acts. For the record, Gisèle Pelicot seems absolutely inert (she snores) on the videos and the fear or state of chemical submission of the co-accused is not the expression that dominates their faces when they perform the sexual acts.
Let’s now come to the heart of the debate: the notion of absence of consent and the definition of rape by the French Penal Code. Article 222-23 of the Penal Code defines rape as “any act of sexual penetration, of whatever nature, or any oral-genital act committed on another person or on the person of the perpetrator by violence, constraint, threat or surprise. Rape is punishable by fifteen years of criminal imprisonment.”
In this current definition of rape – apart from the fact that the words “absence of consent” are not included anywhere – it is up to the alleged victim to demonstrate that she or he or they did not give her/his/their consent to the sexual act and that there was violence, constraint, threat or surprise or a combination of these different elements – because French law establishes a presumption of consent.
Positive French law thus relegates the absence of consent to a consequence of these four circumstances of violence, constraint, threat or surprise. In other words, positive French law establishes a quasi-equivalence between the circumstances of violence, constraint, threat or surprise and the absence of consent.
Unable to determine the existence of violence, constraint, threat or surprise and therefore the absence of consent, French judges sometimes find themselves unable to convict many cases of sexual violence, which fall outside these four circumstances. This is the case when the victim is in a state of shock or dissociation. This is also the case when the victim knows the aggressor and is forced by more insidious coercive means.
In the context of Article 222-23 of the French Penal Code, what about rape by chemical submission?
The French National Agency for the Safety of Medicines and Health Products defines chemical submission as “the administration for criminal purposes (rape, acts of pedophilia) or misdemeanor purposes (intentional violence, theft) of psychoactive substances without the victim’s knowledge or under threat“. Most assaults occur in party venues and sexual assaults constitute the majority of reports (58.4%).
The expression “chemical submission” does not appear in the definition of rape proposed by Article 222-23 of the French Penal Code but it is mentioned as an aggravating circumstance in the following article, Article 222-24 paragraph 15: “rape as defined in Article 222-23 is punishable by twenty years of criminal imprisonment when a substance has been administered to the victim, without their knowledge, in order to impair their judgment or control of their actions”. If we have to refer to the Pelicot trial, if there is a conviction, it will probably be for rape by surprise, with the aggravating circumstances of chemical submission and gang rape (but also in my opinion with regard to Dominique Pelicot, with the aggravating circumstances referred to in Article 222-24 paragraph 11 – rape committed by the spouse or partner of the victim. The question remains pending for the spouse of one of the co-accused who was raped using the same method of chemical submission by Dominique Pelicot and who could fall under paragraph 10 of Article 222-24, when the rape is committed in conjunction with one or more other rapes committed on other victims).
Discernment and control of acts indirectly refers to consent – which would make sense if the very notion of consent was included in the definition of rape.
Rape is a sexual act perpetrated without consent and it is this very core fact that should be reflected in Article 222-23 of the French Penal Code. A vast majority of complaints are dismissed (86% of complaints between 2012 and 2021, according to the Institute of Public Policy) because victims are unable to prove the absence of consent. In the Pelicot case, there are videos that allow us to measure Gisèle Pelicot’s lack of consent, but we can imagine the difficulty the victim faces when no filmed evidence exists – which concerns the majority of cases.
Knowing that the notion of consent is already at the heart of all legal debates since it is around this notion that French case law relating to cases of rape and sexual assault has been developed, it is worth giving it a real legal existence by integrating it into the very definition of rape. Judges are forced to dance around the issue of consent by referring to the circumstances of violence, threat, constraint or surprise, while these four circumstances often force French judges to make intellectual contortions in order to force the facts of the case into one of the four cases of violence, threat, constraint or surprise in order to retain the qualification of rape.
It goes without saying that consent in sexual matters cannot be proven, as in civil law, by a signature on a contract, and the French judge must be able to address all the nuances and circumstances of the specific case in order to determine whether or not there was consent. The restrictive list of violence, threats, coercion and surprise can greatly prevent this.
Integrating the notion of absence of consent, yes, but how?
In the hypothesis (which is ultimately not a hypothesis since it is the current state of French law) where it is the absence of consent that must be proven, the burden of proof rests on the presumed victim, who must prove that she/he/they expressed a disagreement with the sexual act performed.
In the hypothesis where it is the consent that must be proven, the burden of proof rests on the accused who must prove that the sexual act was performed with the person’s consent.
Some believe that it is easier to prove the absence of consent of the alleged victim than to prove acts of violence, threats, constraint or surprise. Others consider on the contrary that it is easier to prove acts of violence, threats, constraint or surprise than to prove an absence of consent.
Others finally (including myself) believe that the organization and wording of articles 222-23 and 222-24 of the French Penal Code weaken the process of qualifying rape, since the first article states that there is rape if there has been violence, threat, constraint or surprise while the second article lists fourteen aggravating circumstances when it is precisely in their very essence that the absence of consent and therefore the existence of rape may reside: chemical submission, vulnerability due to age, illness, infirmity, physical or mental deficiency, dependence resulting from economic insecurity, the link of ancestry or authority, gang rape, use of a weapon, marital rape.
As you will have understood, the question is far from being resolved, but it remains crucial to integrate the notion of consent into the criminal definition of rape and reorganize articles 222-23 and 222-24 of the French Penal Code.
In France, two bills to integrate the notion of absence of consent into the Penal Code were recently submitted, one by Mélanie Vogel in the Senate on November 16, 2023, the other by Sarah Legrain in the National Assembly on February 13, 2024, but they were not examined before the end of the last legislature, which has been somewhat disrupted since then.
The President of the French Republic himself, after opposing a European definition of rape, finally said he was in favor of taking into account the notion of consent on March 13, 2024.
At the end of the four months of the lengthy trial of the Pelicot case, the French legislature will, I hope, I wish, be obliged to amend articles 222-23 and 222-24 of the French Penal Code.
You have a headache? I understand.
Now, I will take off my lawyer’s robe to share several societal reflections.
Some may be surprised that the alleged defendants chose women as lawyers. Nothing more classic, it is almost a necessary step, because such a choice offers a moral endorsement by weaponizing the lawyer’s gender (“if this one defends me, I can’t be a rapist”) that is supposed to be unstoppable – but is not – especially when the defense lawyer attacks, without any respect the civil party whose status as victim is incontestable based solely on Dominique Pelicot’s admission of marital rape.
The role of the defense attorney is obviously to exonerate her clients or to reduce the sentence that will be inflicted on them – but the fact remains that she is facing a victim of proven marital rape and that a minimum of respect and dignity is expected from an ethical point of view, which does not authorize – in my not humble opinion – to discuss an ongoing trial on social media and especially to mock the victim.
I hardly dare at this stage to speak of sisterhood or sorority, because one knows from a sociological point of view that certain oppressed people side with the oppressor to ensure their survival – and this is unfortunately the case in terms of sexual assault, rape or incest if we must refer to mothers who are the silent accomplices of incest, women who play the role of pimps (hello Ghislaine Maxwell) or groups of women who are victims of street assaults and who exploit the sexual bait of their female friends in order to escape the ordeal.
Another thought. Several defendants considered that Dominique Pelicot’s consent alone was enough to perform sexual acts on his unconscious wife. The notions of physical integrity, individual personality, independence and consent seem foreign to the minds of some men who still consider that a man is the owner of his wife’s body. Dominique Pelicot also shared his modus operandi with four co-defendants and one of them committed sexual acts about ten times with his own wife, including two with Dominique Pelicot.
Another thought, again, in connection with a notion which was evoked by one of the psychologists experts – that of “circle of violence”. The hearings of the co-defendants revealed that thirteen of them (including Dominique Pelicot) had themselves experienced sexual abuse or incestuous acts in their childhood or adolescence. Six of them have already been convicted of domestic violence, two of them for sexual violence. Five co-defendants are also under investigation for possession of child pornography.
Well, the transmission of traumas chains is unfortunately still a thing because of the lack of awareness of traumas, the lack of education, the lack of personal work and the lack of will to break the harmful chain. However, the primary status of victim of the perpetrator of sexual assault, rape, incest or marital homicide is an element which must be potentially explanatory, never justificatory: the vast majority of victims of this type of crime are female and are nevertheless able to break the circle of violence by not reproducing what was suffered.
As to education, it has often been said “educate your sons” as if these sons were animals full of testosterone released into the wild, as if they had to be tamed – the fault being theirs. But the harsh reality of the injunction is that the responsibility always lies with adults and that it is impossible to educate well if one commits, as a parent, violent, abusive or deviant acts.
In addition, there is rarely an isolated act (except the first one) of violence, of deviance – and it is perhaps this opinion that led the investigators seized of a supermarket case to carry out a search that resulted in the Pelicot trial.
Another thought, again. I listen to one of my colleagues who explains to me that the Pelicot tragedy took place over a radius of about sixty kilometers, that other rapes were committed in other French regions (the former Pelicot home or on vacation) – and who wonders, applied to a national scale, how many such evil circles exist.
Another thought, again. I can’t help but think of Lucile Peytavin’s excellent book, “The Cost of Virility“, which brilliantly exposes the cost of toxic masculinity. I don’t know how much the Pelicot affair will have cost – in police, judicial and penitentiary terms, but it is obvious that this cost – beyond the immense human cost – is absolutely not insignificant and that an entire society is paying for it.
Another thought, again. Contrary to what one might believe, the men incriminated are men who seem – according to the laws of appearance at least – to be integrated into civil society and sometimes participate in public service, whether they are firefighters, prison guards, nurses, municipal councilors or soldiers. Not to mention those who are in the private sector (journalists, truck drivers, retirees, workers, IT specialists), we realize that it is an entire society that is rotted. Moreover, it is in no way a question of era or generation: the oldest of the co-accused is 67 years old but the youngest is 22. They are, for 37 of them, fathers and one of them was in the adoption process (since cancelled) before the trial opened. I will not evoke Hannah Arendt and the banality of evil, I will not evoke the Milgram experiment even if I would very much like to.
It is about time that a national policy on rape and sexual violence and assault be put in place. We now know that the numbers and statistics concerning sexual assaults and rapes are not reliable since the majority of victims do not file complaints (“Justice ignores us, we ignore Justice”). France is certainly already well behind other countries, but let’s keep in mind that a national policy is forged on a societal, media and judicial momentum, which crystallizes a change in society. The Pelicot trial, which is very precisely in the eye of the storm, will perhaps be the detonator.
You have a headache? Me too.
Editor’s note: to clear the air, let’s look at pictures of the historical Palace of Justice in Paris.
December 6, 2024
