Why the Gisele Pelicot case calls for a redefinition of rape in France

By Dori Felber, Read: 3 minutes 42 seconds

Time to redefine the outdated definition of rape in France? As the horrific testimony of Gisele Pélicot unfolds, many have argued for a redefinition of rape in France. This specifically followed after lawyer Guillaume de Palma, who is defending 6 of the accused, argued that “In France proof of intent is required” in order for it to qualify as rape. 

Gisele Pélicot is a survivor of a series of rape, orchestrated by her husband Dominique Pélicot. Over a period of 9 years (July 2011 to October 2020) Gisele Pélicot was repeatedly raped by her husband and individuals who he would invite, whilst she was drugged and unconscious. In total, Gisele Pélicot was raped 92 times by 72 men, as her husband filmed the abuse. These horrific acts came to light when Dominique Pélicot was arrested by the police for taking upskirt photographs of women in supermarkets. The police discovered thousands of images and videos that Pélicot had taken of the rapes and stored on his computing equipment. Pélicot is further accused of training Jean-Pierre Maréchal on how to drug and rape his own wife.

It is the State’s responsibility to prosecute sexual assault offences as a grave and systematic violation of human rights, and in order to do so, a comparison and evaluation must be made between the laws that are in place for rape in France (who has ratified the Convention) against the criteria set out in the Istanbul Convention. The above-mentioned Convention is the first instrument in Europe that sets out legally binding standards for the laws and procedures that are in place for such crimes, created with the intention to protect the victims and adequately punish the perpetrators.

The definition of rape is detailed in Article 36 (a) (c) of the Istanbul Convention as the following:

a. Non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;

c.  Causing another person to engage in non-consensual acts of a sexual nature with a third person.

It further states that consent must be given voluntarily, which will be assessed according to the circumstances of the case (Article 36 (2)), and that this offence includes former or current partners and spouses (which are recognised by national law) (Article 36 (3)). Thus, the relationship between the victim and the perpetrator does not matter (Article 43). Lastly, Article 46 explains that, if applicable, additional aggravating conditions must be applied. This includes offence committed against a current spouse or committed against a person made vulnerable due to specific circumstances. 

Article 222-23 of Code Pénal Français details that rape is any act of sexual penetration, of whatever nature, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, constraint, threat or surprise. Upon comparison, it is immediately visible that the above-mentioned definition does not include the word ‘non-consensual’. The definition detailed above gives room for argument as to whether the offence constituted rape. The Istanbul Convention details that definitions of sexual assault offences must protect the victims to the fullest extent. The missing element of consent in the definition of rape lacks such a protection. Furthermore, stating that ‘rape is any act of sexual penetration committed by violence, constraint, threat or surprise’ conveys the idea that there needs to be intention. All of the above-mentioned acts necessitate pre-meditated intention. In order to threaten someone, one must know what they are threatening the victim for. This is equally true for constraint, violence and surprise. Consequently, the Article 222-23 necessitates pre-meditated intention for rape. Consequently, such a definition leaves room for lawyers such as Guillaume de Palma to argue that if there is no intention, there is no rape. From this, it is visible that the inclusion of consent in the definition of rape makes the protection of victims unequivocal. Lack of consent, for whatever reason, equals rape. 

In conclusion, when evaluating the definition of rape in France against the legal standard provided for by the Istanbul Convention, it is clear that France must redefine their definition of said offence in order to provide adequate protection for the victims and to sufficiently prosecute and punish the perpetrators.