They must also decide “whether he or she was in a position to make that choice freely and was not constrained in any way”.
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Carole Hardouin-Le Goff, a law professor whose specialty studies are 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 said, 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 defence lawyers exploited its absence from legislation.
“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. For the charge of rape to be established, “the guilty intent of the perpetrator must be demonstrated”.
No defendant could confirm he had asked for any kind of consent from the inert victim.
Crowds gather at Place de la Republique in Paris to support Gisele Pelicot.Credit: AP
Despite damning video evidence, 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.
Gisele Pelicot made a critical point: “I’ve seen individuals take the stand, most of them denying rape. I want to say to these men: at what point [did you get] consent when you entered this room? At what point do you become aware of this inert body?”
Others defendants 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,” claimed one of them, Andy Rodriguez.
According to Darsonville, “The problem in France currently [is a defendant saying], ‘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.”
The push for including consent in legislation dealing with rape had gained significant support in France before the Pelicot trial. In a November 2023 poll, 89 per cent of respondents favoured updating the legal definition of rape.
Last year, France opposed a move to make non-consensual sex a criminal offence across the European Union. French president Emmanuel said that, while he was against legislating on the issue at an EU level, he favoured new legislation in France.
Didier Migaud, the justice minister in former prime minister Michel Barnier’s government, also recently backed the change.
Aurore Berge, the outgoing equality minister, agreed that Darsonville was “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.”
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However, 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 a person can say “yes” without wanting to.
Anne-Cecile 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”.
She claimed consent law is a key factor in the “catastrophic” low conviction rate in the UK – there is a 1 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, Mailfert argued.
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In France, only 6 per cent of rape cases go to court and very few of these end in convictions – from 36,000 complaints last year there were 2083 convistions.
“But that’s not because of the definition of rape,” Mailfert said. “The real problem is resources for proper investigations, overcrowded prisons and judges encouraged to drop cases that aren’t clear-cut,” said Mailfert.
She cited prejudice among male judges, adding, “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, Pelicot, 71, insisted the trial was about changing “the way we look at rape”. How that is translated into law remains a hotly contested issue.
The Telegraph, London
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