- Email: [email protected]
Marital rape according to French law: Desire, need and consent
Sexologies (2009) 18, 182—185
ORIGINAL ARTICLE
Marital rape according to French law: Desire, need and consent夽 P. Bensussan (MD) 1,2 13, rue de la Pourvoirie, 78000 Versailles, France Available online 28 May 2009
KEYWORDS Rape; Desire; Consent; Couple; Expertise; Sexual incompatibility
夽 1 2
Summary Objective. — This article provides a critical analysis of a concept which will sound rather obvious: sexual relations are only acceptable when both parties consent to them; any form of forced sex is henceforth considered as rape, even when it takes place between two spouses. The author looks at how difficult it can be for the judge and the psychiatric expert to evaluate the plaintiff’s consent or refusal, and — even more difficult — the defendant’s perception of her consent or refusal. The subtleties of flirting and foreplay, the potential violence involved in sex, inexperience on the part of the lovers are today some of the frightening pitfalls that can lead to extremely severe sentences when charges are pressed. Indeed since a change in the law in France in 2006, spousal rape is now considered an aggravating circumstance and as such is more severely punished than the rape of a stranger. Method. — Based on 15 years experience of legal psychiatry and a review of more than 200 cases of rape, the author, a qualified psychiatrist and expert approved by the French Court of Appeal, qualified in clinical sexology, specialising in sexual delinquency, shares with us some of the results of his experience. Discussion. — An increasing percentage of cases of rape — currently 60% of the total — involve partners or ex-partners. This does not mean that there is more violence within couples today than in the past; but rather that the threshold of perception of violence has considerably dropped, and shows us that we should reconsider the relevance of currently used legal terms and concepts. Result. — The author, a psychiatrist and sexologist, approved as an expert by the French Court of Appeal, specializing in sexual delinquency, explains why he believes that ‘‘consent’’, the evaluation of which is presented to the court by the psychiatric expert, is not a legally meaningful criterion since it cannot be proven and can easily be denied. He suggests that our legal terminology should be expanded so as to avoid lumping together under the same name ‘‘rape’’ very different situations ranging from an aggression in the street of a total stranger to sex forced by an egocentric spouse on a partner who no longer desires it. © 2009 Published by Elsevier Masson SAS.
DOI of original article:10.1016/j.sexol.2009.04.002. Également en version franc ¸aise dans ce numéro : Bensussan P. Viol entre époux en droit franc ¸ais : désir, besoin et consentement. E-mail address: [email protected]. Forensic psychiatrist, approved expert witness. www.paulbensussan.fr.
1158-1360/$ – see front matter © 2009 Published by Elsevier Masson SAS. doi:10.1016/j.sexol.2009.04.001
Marital rape according to French law: Desire, need and consent
Introduction Should sexual incompatibility be a cause for divorce? Although an unconsummated marriage, which happens more often than one might think1 , is still a cause for divorce, and for practicing Catholics, even a cause for annulment of the marriage, sexual fulfillment and the right to experience pleasure are definitely not the legislator’s main priority. The right to say ‘‘no’’, particularly in questions of intimate relations and the violation of one’s body, looks as though it should be an undeniable primordial right. Does that mean then that all intercourse today between partners in an official couple has really been consented to, in the literal sense of the word? Does consent imply desire? What about sexual relations that are purely ‘‘endured’’ by one of the partners, without desire or pleasure? Or sex that is extorted with insistance, but without violence? There is an urgent need to get practical and firmly denounce the victimological confusion, particularly when you consider that the law does not stand for any nonsense as far as love is concerned: to rape one’s wife is a crime punishable in France by a long prison sentence (20 years); longer than the recommended sentence for raping a stranger (15 years). If, as some studies suggest (Basile et al., 2007), 30% of rapes suffered by women are committed by their spouse or partner, it is easy to see the stakes from a medical and legal standpoint. The legal profession already knows very well: in Europe, France has the reputation of being the most repressive country for sex crimes. The figures speak for themselves: the number of men in prison in France for rape is between two and 118 times higher than in the other Council of Europe countries2 and the sentences pronounced are significantly longer3 .
Rape: definition in French law This inflation raises a certain number of questions, including the effects of changes in rape as a concept since the reform of 1980. In the past, it was limited to ‘‘illegal’’ vaginal intercourse (a woman could not rape a man), the term ‘‘rape’’ was essentially used to sanction extramarital sex. This meaning of rape was respected in case-law until 1980 (Iacub, 2002). Since the reform that same year, ‘‘rape’’ now means ‘‘any action of sexual penetration, regardless of its nature, committed on another person by means of violence, duress, threat or surprise’’ (Code pénal, article 222-23). The requirement for consent was implicit in this statement: anything forced upon another is violent, thereby bringing
1 It is said to be the case for 2 to 4% of the French population aged between 18 and 58 years, i.e. about a million people! 2 France holds the sorry record of 8,538 prisoners for rape out of a total of 56,806. Germany has half as many (4,578), Italy six times less (1,282) and Denmark 118 times less (72). Source : Statistique pénale annuelle du Conseil de l’Europe, 2004 Survey. 3 Every country in Europe classifies rape as an offence punished by imprisonment. But whereas the minimum sentence allowed in France is fifteen years imprisonment (the maximum is life), in Germany for example, the minimum is one year, two years in Spain and five years in Belgium.
183 about a significant modification to the representation of violence.
‘‘I now pronounce you husband and wife. . .’’ Being married obviously does not give one spouse the right to dispose of the body of the other as he wishes and take no account of their desires or refusals. ‘‘Conjugal duty’’ has become obsolete. Consent is therefore always a requirement, even within a legal partnership. And yet, although this seems obvious today, that has not always been the case. For a very long time the idea — the premise — prevailed by which marriage implied mutual and permanent consent by each of the spouses to sexual relations. A husband who imposed sexual relations on his wife who did not want them, claiming she was ‘‘not that way inclined’’, was considered to be acting in good faith. The courts have totally changed their attitude in terms of case law, taking account of changes in morals and public opinion. Marriage can no longer be the legal cover for sexual practices forced upon another human being. It has become not only unacceptable, but even illegal — criminal — for a husband to subject his wife to sexual relations that she does not want (or no longer wants) by means of physical or moral duress (threatened divorce, emotional blackmail, threats that he will ‘‘go elsewhere’’, etc.), using as sole justification her ‘‘conjugal duty’’ — hardly very erotic in itself. Put in this way, it can hardly be considered the stuff of fantasy. . .: how can it be possible to accept that a woman has to subject herself to unwanted sex simply because she does not know that she is protected by law? The concept of disgust, so important in sexology, is hinted at in the legislator’s intentions: ‘‘At the end of the day, who knows? Far too many people are convinced that ‘‘anything goes’’ within a married couple, up to and including the unspeakable’’.4
Recognising the crime It was in 1990 that the Court of Appeal ‘‘recognized the crime’’ for the first time as an offence judged by the Crown Court — spousal rape. The recognition of this concept had no other intention than ‘‘protecting the freedom of every individual’’, since, as indicated by the Court of Appeal, the crime of rape ‘‘does not exclude from its provisions actions of sexual penetration between spouses’’5 . In a ruling on June 11, 1992, it confirmed this ruling by clearly asserting that ‘‘the presumption of consent between spouses for sexual activities is only valid until there is proof to the contrary’’. This point of view is also the one adopted by the European Court of Human Rights6 . The legal situation is therefore now quite clear, at least at first sight: if it can be proven that there was duress, absence of consent and forced sexual relations, there is a
4 Quoted from M. Roland Courteau during discussions at the French Senate in a public hearing on March 29, 2005. 5 Cass. crim., September 5, 1990. 6 CEDH, November 22, 1995, CR et SW v/ United Kingdom.
184 definite case of rape. When it happens within a marriage, and regularly consummated throughout the lifetime of the mediocre conjugal and sexual relationship; when the wife can no longer bear the forced and unsatisfactory sexual relations, pressing criminal charges may seen like the only solution — often in parallel to the break-up of the couple. All very well, but how able is the law to prove the absence of consent? How can you ‘‘consent’’ when there is no love or desire left in the marriage? Indeed, nothing but endless arguments? Should we, as suggested by the most radical of feminists, consider that any undesired sexual relation is rape? How can a man’s insistence be measured when he manages to extort a sexual relation? The ‘‘passive’’ posture is generally perceived as feminine, whereas the ‘‘active’’ posture is generally perceived as masculine. Do we not say ‘‘to take’’ a woman? Or for the woman to ‘‘give herself’’? This traditional division of roles, although deeply infused with ethology, is often denounced, suspected of covering and supporting intolerable violence. The imperiousness of male desire — or of his erection — often gives him the illusion that his desire is contagious, and the man then has the impression that he can overstep female resistance being expressed purely for the sake of form: ‘‘The mouth always says no, and must say no; but there are differences in the way it is said, and this will show the true intent’’ (Rousseau).
Consent? Prove it! But is it so easy to measure consent to sex? Without realizing it, the legislator has fallen into an impossible trap: how can you qualify a forced sex act that might give pleasure? How can you define from a legal and psychological point of view a sexual act endured without desire or pleasure, due to incessant harassment from the partner, a partner the spouse no longer desires and finds increasingly unbearable? It is interesting to observe that a wife who endures such sexual relations will be more likely to speak of (his) ‘‘needs’’ rather than his ‘‘desire’’. ‘‘If I refuse to satisfy his needs, the atmosphere at home becomes unbearable. . .’’ This is on the furthermost boundaries of what criminal law now calls a crime: spousal rape, obviously often put forward in a context of conflict and separation. When you think about it, do many couples separate without seeing their sex-lives deteriorate before they take their decision? Is it not frequent for what is left of a relationship to be further damaged by forced or unwanted sex? The feminists will be up in arms, and rightly so: all rapists, as the magistrates and experts know, will claim ‘‘she was consenting’’. . . Or perhaps: ‘‘I thought she was consenting. . . we were at her home after all. . .’’. Eroticism requires subtlety and intuition. Desire or refusal that is only expressed by a yes or a no without any ambiguity or ambivalence would be more of a ‘‘contract’’ than an expression of desire. The difficulty is to reconcile the subtleties and contradictions of love play and flirting with the requirements and criteria of law. Even the sociologist Eric Fassin, hardly likely to
P. Bensussan defend the male cause, being a feminist sympathiser7 admits the existence of a symbolic female refusal; ‘‘resistance as a matter of form (quote), so as to better signify her assent. . .’’ And reveals that in a recent survey, 40% of Texan women questioned stated that they sometimes say ‘‘no’’ when they mean ‘‘yes’’ (Fassin, 1997). As we said above, it has to be admitted that the complexity of female desire does not fit in very well with the simplicity and rigor of criminal law. . . And yet at first sight, things don’t look quite so complicated. Who would ever dream of using the term ‘‘rape’’ to describe what happens when a wife submits without desire to sexual intercourse with her husband in a marriage which is peaceful in all other respects? You might hear that the judge is there precisely to interpret the law and to evaluate on a case by case basis whether there was violence or not. And the law must draw a line somewhere. But this line might be extremely fuzzy: when the conflict starts, all the natural barriers come up, the safety wall, to keep people at a distance. How many couples who fell out of love long ago continue to ‘‘make love’’, (i.e. ‘‘consent’’ to sexual relations), but no longer kiss each other? Because these barriers are well and truly there. Almost tangible. And in such cases, without even realizing, the situation is often close to the breach. When the time comes to split and dish the dirt, all these reproaches will spill out into the open, sometimes expressed with anger and violence, and the question of how much consent there really was will be thrown onto the table. When they remain just private spats between lovers, the misunderstandings should have no serious consequences; but once they reach the judiciary, the complex fields of flirting and violence inherent to human sexuality are revisited in the light of the criminal code: with the merciless confrontation between two subjective views full of hatred.
Law of April 4, 2006: marriage, aggravating circumstance The stakes are high from a legal point of view. As we have already seen, spousal rape is now more severely punished in France than rape of a stranger. The law of April 4, 2006, passed with a view to better preventing marital violence gave a legal definition and additional force of dissuasion for the repression of spousal rape. Doing the exact opposite of what the courts tended to do — where the status of spouse implicitly entailed a form of indulgence — in legal terms, attenuated responsibility — the legislator declared that when the rape was committed on the spouse, this was on the contrary, an aggravating circumstance. Of course, the rule also applied to unmarried couples and civil partnerships. Consequently, it was henceforth much more serious, at least in the eyes of the law, to be raped by one’s partner or spouse than by a stranger in some dark alleyway. In the latter case, the maximum sentence for the rapist if he is found guilty is 15 years imprisonment. In the former case,
7 Read his opinions on sexual harassment in Le Monde on February 22, 2002 for example: ‘‘News on sexual harassment’’.
Marital rape according to French law: Desire, need and consent the sentence faced by the brutal or egocentric spouse or partner increases to 20 years imprisonment. Although both cases are unacceptable, we must recognize that they are quite different in nature, and that the seriousness of the psychological scars left will also vary fundamentally. The surviving victims of a serial rapist will agree; their experience was first and foremost the fear of death, quite different from the pain of a sexual relation endured under duress (and the weight!) of a spouse they no longer love and whose desire inspires nothing but revulsion. To use the same word to describe (and press charges against) these two situations, where one causes the fear of imminent death and the other generally only inspires disgust, raises a serious problem of semantics. Are our Western languages so poor that the single word ‘‘rape’’ must be used to describe two such different situations? Can the word ‘‘rape’’ alone describe all the different situations in which a victim is forced into enduring an unwanted sexual relation? We do not think so: we need to invent a new term if we want to avoid increasing the judicial uncertainty even further.
Discussion: is consent the most meaningful criterion? It is not always an easy task to decode sexual signals, and the studies we have mentioned show that the approach adopted by the radical feminists (‘‘when a woman says no, it’s no’’) needs to be toned down. We tend to forget that to be declared guilty of rape, the accused has to have had the intention of raping. This means that it must be proven — in theory, the responsibility of proving this rests with the accusation — that the accused rapist ignored a refusal that he clearly perceived (but without it being necessary for this refusal to have been clearly expressed by the victim). It is a fundamental principle of criminal law that the incriminated behavior is only subject to the law if it has been committed intentionally and deliberately8 . Intent is the conscience and the desire to commit an illegal action. From a legal point of view, rape can only be committed if the rapist knew that he was forcing the victim to have sexual relations that she did not want. This was highlighted by the Court of Appeal in a ruling on June 20, 20019 which it stated without any ambiguity that ‘‘it was not sufficient to show that he could not have been unaware that the victim was not completely consenting, to find the accused guilty of rape’’. As underlined by a specialist in criminal law, we have to admit that ‘‘part of recent case-law shows a legally unjustified tendency to place the burden of proving his good faith on the shoulders of the accused, and in addition, being very demanding in terms of what can be accepted as such proof’’10 .
8 With the exception of ‘‘unintentional’’ offences such as nonculpable homicide or manslaughter, endangering the safety or life of others, unintentional injury, etc. 9 Cass. crim., June 20, 2001. 10 Michèle-Laure Rassat, Jurisclasseur Pénal Code, Agressions sexuelles, fasc. 20, no 28.
185 Our experience of criminal psychology shows us every day that the population of prisoners sentenced for rape is not homogenous enough, or even studied enough for us to be able to apply general rules. Further studies will be necessary to validate and confirm suppositions made through judicial expertise. A man who rapes a stranger obviously does not have the same psychopathological characteristics as an insensitive or egocentric partner or ex-partner. In the latter case, the one we are interested in today, the ‘‘sick’’ party is the relationship, rather than the individuals involved, who are often totally free of any psychiatric disorders. This is one of the strongest arguments in favor of joint expertise, where the same expert is asked to examine both the plaintiff and the accused. If this premise is confirmed, it is urgent to look carefully at the relevance of the single term ‘‘rape’’ used to describe such different offences. We could for example compare ‘‘rape’’ (with the representation of violence and invasion that is generally attached to it) with ‘‘forced sex’’ (which is by no means trivializing the offence). Human rights would still be respected and legal terminology would be all the richer for including nuances that cannot currently be taken into consideration. The least we can expect from a system of justice is that it can tell the difference between truth and falsehood. This can be a delicate task in the passionate climate surrounding human relationships and sexual abuse. The risk of loosing direction due to judiciary error should not be underestimated. This is particularly due to the fact that the declarations of a plaintiff considered and designated as the victim as soon as charges are pressed, and the denials of the accused, do not exactly carry the same weight. It is essential that the lawyers, judges and experts working on such cases be very careful in not confusing absence of desire and absence of consent, as the most radical of feminists sometimes demand with vehemence. (Mathieu, 1985). Otherwise, given the number of times during a married life a couple has sexual relations endured without either desire or pleasure, purely to alleviate tension or avoid bad moods, we had better start recruiting more judges. And building more prisons.
References Basile KC, Chen J, Black MC, Saltzman LE. Prevalence and characteristics of sexual violence victimization among US adults, 2001-2003. Violence Vict 2007;22:437—48. Iacub M. Le crime était presque sexuel. éd. Flammarion; 2002. Fassin E., Le date rape aux États-Unis : figures d’une polémique. Revue d’anthropologie 1997;pp. 193—222:ISSN 1245-2084. Mathieu NC. Quand céder n’est pas consentir. In: L’arraisonnement des femmes. Essais en anthropologie des sexes; 1985. p. 169—245.
ORIGINAL ARTICLE
Marital rape according to French law: Desire, need and consent夽 P. Bensussan (MD) 1,2 13, rue de la Pourvoirie, 78000 Versailles, France Available online 28 May 2009
KEYWORDS Rape; Desire; Consent; Couple; Expertise; Sexual incompatibility
夽 1 2
Summary Objective. — This article provides a critical analysis of a concept which will sound rather obvious: sexual relations are only acceptable when both parties consent to them; any form of forced sex is henceforth considered as rape, even when it takes place between two spouses. The author looks at how difficult it can be for the judge and the psychiatric expert to evaluate the plaintiff’s consent or refusal, and — even more difficult — the defendant’s perception of her consent or refusal. The subtleties of flirting and foreplay, the potential violence involved in sex, inexperience on the part of the lovers are today some of the frightening pitfalls that can lead to extremely severe sentences when charges are pressed. Indeed since a change in the law in France in 2006, spousal rape is now considered an aggravating circumstance and as such is more severely punished than the rape of a stranger. Method. — Based on 15 years experience of legal psychiatry and a review of more than 200 cases of rape, the author, a qualified psychiatrist and expert approved by the French Court of Appeal, qualified in clinical sexology, specialising in sexual delinquency, shares with us some of the results of his experience. Discussion. — An increasing percentage of cases of rape — currently 60% of the total — involve partners or ex-partners. This does not mean that there is more violence within couples today than in the past; but rather that the threshold of perception of violence has considerably dropped, and shows us that we should reconsider the relevance of currently used legal terms and concepts. Result. — The author, a psychiatrist and sexologist, approved as an expert by the French Court of Appeal, specializing in sexual delinquency, explains why he believes that ‘‘consent’’, the evaluation of which is presented to the court by the psychiatric expert, is not a legally meaningful criterion since it cannot be proven and can easily be denied. He suggests that our legal terminology should be expanded so as to avoid lumping together under the same name ‘‘rape’’ very different situations ranging from an aggression in the street of a total stranger to sex forced by an egocentric spouse on a partner who no longer desires it. © 2009 Published by Elsevier Masson SAS.
DOI of original article:10.1016/j.sexol.2009.04.002. Également en version franc ¸aise dans ce numéro : Bensussan P. Viol entre époux en droit franc ¸ais : désir, besoin et consentement. E-mail address: [email protected]. Forensic psychiatrist, approved expert witness. www.paulbensussan.fr.
1158-1360/$ – see front matter © 2009 Published by Elsevier Masson SAS. doi:10.1016/j.sexol.2009.04.001
Marital rape according to French law: Desire, need and consent
Introduction Should sexual incompatibility be a cause for divorce? Although an unconsummated marriage, which happens more often than one might think1 , is still a cause for divorce, and for practicing Catholics, even a cause for annulment of the marriage, sexual fulfillment and the right to experience pleasure are definitely not the legislator’s main priority. The right to say ‘‘no’’, particularly in questions of intimate relations and the violation of one’s body, looks as though it should be an undeniable primordial right. Does that mean then that all intercourse today between partners in an official couple has really been consented to, in the literal sense of the word? Does consent imply desire? What about sexual relations that are purely ‘‘endured’’ by one of the partners, without desire or pleasure? Or sex that is extorted with insistance, but without violence? There is an urgent need to get practical and firmly denounce the victimological confusion, particularly when you consider that the law does not stand for any nonsense as far as love is concerned: to rape one’s wife is a crime punishable in France by a long prison sentence (20 years); longer than the recommended sentence for raping a stranger (15 years). If, as some studies suggest (Basile et al., 2007), 30% of rapes suffered by women are committed by their spouse or partner, it is easy to see the stakes from a medical and legal standpoint. The legal profession already knows very well: in Europe, France has the reputation of being the most repressive country for sex crimes. The figures speak for themselves: the number of men in prison in France for rape is between two and 118 times higher than in the other Council of Europe countries2 and the sentences pronounced are significantly longer3 .
Rape: definition in French law This inflation raises a certain number of questions, including the effects of changes in rape as a concept since the reform of 1980. In the past, it was limited to ‘‘illegal’’ vaginal intercourse (a woman could not rape a man), the term ‘‘rape’’ was essentially used to sanction extramarital sex. This meaning of rape was respected in case-law until 1980 (Iacub, 2002). Since the reform that same year, ‘‘rape’’ now means ‘‘any action of sexual penetration, regardless of its nature, committed on another person by means of violence, duress, threat or surprise’’ (Code pénal, article 222-23). The requirement for consent was implicit in this statement: anything forced upon another is violent, thereby bringing
1 It is said to be the case for 2 to 4% of the French population aged between 18 and 58 years, i.e. about a million people! 2 France holds the sorry record of 8,538 prisoners for rape out of a total of 56,806. Germany has half as many (4,578), Italy six times less (1,282) and Denmark 118 times less (72). Source : Statistique pénale annuelle du Conseil de l’Europe, 2004 Survey. 3 Every country in Europe classifies rape as an offence punished by imprisonment. But whereas the minimum sentence allowed in France is fifteen years imprisonment (the maximum is life), in Germany for example, the minimum is one year, two years in Spain and five years in Belgium.
183 about a significant modification to the representation of violence.
‘‘I now pronounce you husband and wife. . .’’ Being married obviously does not give one spouse the right to dispose of the body of the other as he wishes and take no account of their desires or refusals. ‘‘Conjugal duty’’ has become obsolete. Consent is therefore always a requirement, even within a legal partnership. And yet, although this seems obvious today, that has not always been the case. For a very long time the idea — the premise — prevailed by which marriage implied mutual and permanent consent by each of the spouses to sexual relations. A husband who imposed sexual relations on his wife who did not want them, claiming she was ‘‘not that way inclined’’, was considered to be acting in good faith. The courts have totally changed their attitude in terms of case law, taking account of changes in morals and public opinion. Marriage can no longer be the legal cover for sexual practices forced upon another human being. It has become not only unacceptable, but even illegal — criminal — for a husband to subject his wife to sexual relations that she does not want (or no longer wants) by means of physical or moral duress (threatened divorce, emotional blackmail, threats that he will ‘‘go elsewhere’’, etc.), using as sole justification her ‘‘conjugal duty’’ — hardly very erotic in itself. Put in this way, it can hardly be considered the stuff of fantasy. . .: how can it be possible to accept that a woman has to subject herself to unwanted sex simply because she does not know that she is protected by law? The concept of disgust, so important in sexology, is hinted at in the legislator’s intentions: ‘‘At the end of the day, who knows? Far too many people are convinced that ‘‘anything goes’’ within a married couple, up to and including the unspeakable’’.4
Recognising the crime It was in 1990 that the Court of Appeal ‘‘recognized the crime’’ for the first time as an offence judged by the Crown Court — spousal rape. The recognition of this concept had no other intention than ‘‘protecting the freedom of every individual’’, since, as indicated by the Court of Appeal, the crime of rape ‘‘does not exclude from its provisions actions of sexual penetration between spouses’’5 . In a ruling on June 11, 1992, it confirmed this ruling by clearly asserting that ‘‘the presumption of consent between spouses for sexual activities is only valid until there is proof to the contrary’’. This point of view is also the one adopted by the European Court of Human Rights6 . The legal situation is therefore now quite clear, at least at first sight: if it can be proven that there was duress, absence of consent and forced sexual relations, there is a
4 Quoted from M. Roland Courteau during discussions at the French Senate in a public hearing on March 29, 2005. 5 Cass. crim., September 5, 1990. 6 CEDH, November 22, 1995, CR et SW v/ United Kingdom.
184 definite case of rape. When it happens within a marriage, and regularly consummated throughout the lifetime of the mediocre conjugal and sexual relationship; when the wife can no longer bear the forced and unsatisfactory sexual relations, pressing criminal charges may seen like the only solution — often in parallel to the break-up of the couple. All very well, but how able is the law to prove the absence of consent? How can you ‘‘consent’’ when there is no love or desire left in the marriage? Indeed, nothing but endless arguments? Should we, as suggested by the most radical of feminists, consider that any undesired sexual relation is rape? How can a man’s insistence be measured when he manages to extort a sexual relation? The ‘‘passive’’ posture is generally perceived as feminine, whereas the ‘‘active’’ posture is generally perceived as masculine. Do we not say ‘‘to take’’ a woman? Or for the woman to ‘‘give herself’’? This traditional division of roles, although deeply infused with ethology, is often denounced, suspected of covering and supporting intolerable violence. The imperiousness of male desire — or of his erection — often gives him the illusion that his desire is contagious, and the man then has the impression that he can overstep female resistance being expressed purely for the sake of form: ‘‘The mouth always says no, and must say no; but there are differences in the way it is said, and this will show the true intent’’ (Rousseau).
Consent? Prove it! But is it so easy to measure consent to sex? Without realizing it, the legislator has fallen into an impossible trap: how can you qualify a forced sex act that might give pleasure? How can you define from a legal and psychological point of view a sexual act endured without desire or pleasure, due to incessant harassment from the partner, a partner the spouse no longer desires and finds increasingly unbearable? It is interesting to observe that a wife who endures such sexual relations will be more likely to speak of (his) ‘‘needs’’ rather than his ‘‘desire’’. ‘‘If I refuse to satisfy his needs, the atmosphere at home becomes unbearable. . .’’ This is on the furthermost boundaries of what criminal law now calls a crime: spousal rape, obviously often put forward in a context of conflict and separation. When you think about it, do many couples separate without seeing their sex-lives deteriorate before they take their decision? Is it not frequent for what is left of a relationship to be further damaged by forced or unwanted sex? The feminists will be up in arms, and rightly so: all rapists, as the magistrates and experts know, will claim ‘‘she was consenting’’. . . Or perhaps: ‘‘I thought she was consenting. . . we were at her home after all. . .’’. Eroticism requires subtlety and intuition. Desire or refusal that is only expressed by a yes or a no without any ambiguity or ambivalence would be more of a ‘‘contract’’ than an expression of desire. The difficulty is to reconcile the subtleties and contradictions of love play and flirting with the requirements and criteria of law. Even the sociologist Eric Fassin, hardly likely to
P. Bensussan defend the male cause, being a feminist sympathiser7 admits the existence of a symbolic female refusal; ‘‘resistance as a matter of form (quote), so as to better signify her assent. . .’’ And reveals that in a recent survey, 40% of Texan women questioned stated that they sometimes say ‘‘no’’ when they mean ‘‘yes’’ (Fassin, 1997). As we said above, it has to be admitted that the complexity of female desire does not fit in very well with the simplicity and rigor of criminal law. . . And yet at first sight, things don’t look quite so complicated. Who would ever dream of using the term ‘‘rape’’ to describe what happens when a wife submits without desire to sexual intercourse with her husband in a marriage which is peaceful in all other respects? You might hear that the judge is there precisely to interpret the law and to evaluate on a case by case basis whether there was violence or not. And the law must draw a line somewhere. But this line might be extremely fuzzy: when the conflict starts, all the natural barriers come up, the safety wall, to keep people at a distance. How many couples who fell out of love long ago continue to ‘‘make love’’, (i.e. ‘‘consent’’ to sexual relations), but no longer kiss each other? Because these barriers are well and truly there. Almost tangible. And in such cases, without even realizing, the situation is often close to the breach. When the time comes to split and dish the dirt, all these reproaches will spill out into the open, sometimes expressed with anger and violence, and the question of how much consent there really was will be thrown onto the table. When they remain just private spats between lovers, the misunderstandings should have no serious consequences; but once they reach the judiciary, the complex fields of flirting and violence inherent to human sexuality are revisited in the light of the criminal code: with the merciless confrontation between two subjective views full of hatred.
Law of April 4, 2006: marriage, aggravating circumstance The stakes are high from a legal point of view. As we have already seen, spousal rape is now more severely punished in France than rape of a stranger. The law of April 4, 2006, passed with a view to better preventing marital violence gave a legal definition and additional force of dissuasion for the repression of spousal rape. Doing the exact opposite of what the courts tended to do — where the status of spouse implicitly entailed a form of indulgence — in legal terms, attenuated responsibility — the legislator declared that when the rape was committed on the spouse, this was on the contrary, an aggravating circumstance. Of course, the rule also applied to unmarried couples and civil partnerships. Consequently, it was henceforth much more serious, at least in the eyes of the law, to be raped by one’s partner or spouse than by a stranger in some dark alleyway. In the latter case, the maximum sentence for the rapist if he is found guilty is 15 years imprisonment. In the former case,
7 Read his opinions on sexual harassment in Le Monde on February 22, 2002 for example: ‘‘News on sexual harassment’’.
Marital rape according to French law: Desire, need and consent the sentence faced by the brutal or egocentric spouse or partner increases to 20 years imprisonment. Although both cases are unacceptable, we must recognize that they are quite different in nature, and that the seriousness of the psychological scars left will also vary fundamentally. The surviving victims of a serial rapist will agree; their experience was first and foremost the fear of death, quite different from the pain of a sexual relation endured under duress (and the weight!) of a spouse they no longer love and whose desire inspires nothing but revulsion. To use the same word to describe (and press charges against) these two situations, where one causes the fear of imminent death and the other generally only inspires disgust, raises a serious problem of semantics. Are our Western languages so poor that the single word ‘‘rape’’ must be used to describe two such different situations? Can the word ‘‘rape’’ alone describe all the different situations in which a victim is forced into enduring an unwanted sexual relation? We do not think so: we need to invent a new term if we want to avoid increasing the judicial uncertainty even further.
Discussion: is consent the most meaningful criterion? It is not always an easy task to decode sexual signals, and the studies we have mentioned show that the approach adopted by the radical feminists (‘‘when a woman says no, it’s no’’) needs to be toned down. We tend to forget that to be declared guilty of rape, the accused has to have had the intention of raping. This means that it must be proven — in theory, the responsibility of proving this rests with the accusation — that the accused rapist ignored a refusal that he clearly perceived (but without it being necessary for this refusal to have been clearly expressed by the victim). It is a fundamental principle of criminal law that the incriminated behavior is only subject to the law if it has been committed intentionally and deliberately8 . Intent is the conscience and the desire to commit an illegal action. From a legal point of view, rape can only be committed if the rapist knew that he was forcing the victim to have sexual relations that she did not want. This was highlighted by the Court of Appeal in a ruling on June 20, 20019 which it stated without any ambiguity that ‘‘it was not sufficient to show that he could not have been unaware that the victim was not completely consenting, to find the accused guilty of rape’’. As underlined by a specialist in criminal law, we have to admit that ‘‘part of recent case-law shows a legally unjustified tendency to place the burden of proving his good faith on the shoulders of the accused, and in addition, being very demanding in terms of what can be accepted as such proof’’10 .
8 With the exception of ‘‘unintentional’’ offences such as nonculpable homicide or manslaughter, endangering the safety or life of others, unintentional injury, etc. 9 Cass. crim., June 20, 2001. 10 Michèle-Laure Rassat, Jurisclasseur Pénal Code, Agressions sexuelles, fasc. 20, no 28.
185 Our experience of criminal psychology shows us every day that the population of prisoners sentenced for rape is not homogenous enough, or even studied enough for us to be able to apply general rules. Further studies will be necessary to validate and confirm suppositions made through judicial expertise. A man who rapes a stranger obviously does not have the same psychopathological characteristics as an insensitive or egocentric partner or ex-partner. In the latter case, the one we are interested in today, the ‘‘sick’’ party is the relationship, rather than the individuals involved, who are often totally free of any psychiatric disorders. This is one of the strongest arguments in favor of joint expertise, where the same expert is asked to examine both the plaintiff and the accused. If this premise is confirmed, it is urgent to look carefully at the relevance of the single term ‘‘rape’’ used to describe such different offences. We could for example compare ‘‘rape’’ (with the representation of violence and invasion that is generally attached to it) with ‘‘forced sex’’ (which is by no means trivializing the offence). Human rights would still be respected and legal terminology would be all the richer for including nuances that cannot currently be taken into consideration. The least we can expect from a system of justice is that it can tell the difference between truth and falsehood. This can be a delicate task in the passionate climate surrounding human relationships and sexual abuse. The risk of loosing direction due to judiciary error should not be underestimated. This is particularly due to the fact that the declarations of a plaintiff considered and designated as the victim as soon as charges are pressed, and the denials of the accused, do not exactly carry the same weight. It is essential that the lawyers, judges and experts working on such cases be very careful in not confusing absence of desire and absence of consent, as the most radical of feminists sometimes demand with vehemence. (Mathieu, 1985). Otherwise, given the number of times during a married life a couple has sexual relations endured without either desire or pleasure, purely to alleviate tension or avoid bad moods, we had better start recruiting more judges. And building more prisons.
References Basile KC, Chen J, Black MC, Saltzman LE. Prevalence and characteristics of sexual violence victimization among US adults, 2001-2003. Violence Vict 2007;22:437—48. Iacub M. Le crime était presque sexuel. éd. Flammarion; 2002. Fassin E., Le date rape aux États-Unis : figures d’une polémique. Revue d’anthropologie 1997;pp. 193—222:ISSN 1245-2084. Mathieu NC. Quand céder n’est pas consentir. In: L’arraisonnement des femmes. Essais en anthropologie des sexes; 1985. p. 169—245.