Should an age of consent be written into French law?

France does not have a legal age of consent – a point which has been under debate again following a new book in which the author tells of the harm she suffered from a sexual relationship with a man of 50 when she was 14.

29 January 2020
By Connexion journalist

Vanessa Springora’s book Le Consentement (Consent) talks about her time with writer Gabriel Matzneff, now 83, who has since written books describing sex with minors, including “sex tourism” with some as young as 10.

French law has an “age of sexual majority” at 15 but no age below which a minor cannot be deemed to consent, whereas in the UK, for example, sex with under-13s is statutory rape.

In France, all sex with minors is punishable, by seven years’ jail and a €100,000 fine, but the more serious crime of sexual assault, which can include rape, requires “force, threats or surprise”.

Lawyers may argue consent as a defence, though courts have sometimes found “surprise” due to a child being too young to understand sexuality.

A 2018 bill aiming to establish a clear age of consent at 15 did not pass after the Conseil d’Etat found fault with its wording.

FOR

Pascal Cussigh, of the Collectif pour l’enfance, which is fighting for the creation of an age of consent

The Penal Code currently contains no law providing that a child is unable to consent to sexual abuse.

There is no special regime for child-ren. Coercion, and therefore non-consent, must be proved, even for children. It is absurd that we even ask the question of consent for a seven-year-old.

Coercion is difficult to prove. There will be no fight, no shouting, no traces of blows, because the victim is often stunned and remains frozen.

A child who is assaulted by a member of their own family will not fight.

Then it is considered that there was no coercion – it is no longer considered rape, but sexual assault, which is judged in a different court.

The sentence is lighter and that’s why some offenders get off with a suspended prison sentence and have the opportunity to reoffend afterwards.

In other countries, the laws are clear. The age of consent has been set at 14 in Belgium, and at 16 in Tunisia and Canada. But France refuses to lay down a principle of non-consent. The law says that the child’s capacity for discernment must be analysed.

A child of seven, nine or 12 years old is not mature enough to freely consent to a sexual act with an adult.

The only way to protect children is to say that, under a certain age, one does not have to demonstrate coercion. It is pre-established by the age of the child.

There is almost impunity for child abuse in France, and this comes from the law. Rapists have a clear defence, by saying that the child consented.

It is often said that the principle of non-consent would be contrary to the presumption of innocence. It would presume something when, in criminal law, one must prove that the offence was committed.

This argument is legally false. Presumptions already exist in criminal law, and presuming non-consent does not mean that the offence is presumed to have been committed.

The principle of coercion is just no longer being discussed, but the sexual relationship between the child and the adult still has to be proven and it has to be intentional.

For the moment, the law has not resolved anything and judges continue to analyse whether the child consented on a case-by-case basis.

AGAINST

Jean-Pierre Rosenczveig, magistrate and former president of Bobigny’s youth court involved in children’s rights

A legal age of consent is not the solution and the debate around it is a false one.

If we have to prove there was no consent, we also have to prove there is consent.

So if we stay in this game of prove and counter-prove, we end up with wrong decisions. We must leave the field of consent and focus on objective facts, which are the sexual relationship of a person over 18 years old with someone under 15 years old.

The law of 2018 did not change anything and could not pass with the amendment, which said that before 15 years there was an absolute presumption of guilt.

The Conseil d’Etat recalled that there could not be an absolute presumption on an element constituting an offence.

Non-consent is the constituent element of rape. It is presumed that, with a big age difference, there is no consent. We know that, we don’t need it imposed in law.

The defendant must be able to prove the contrary.

As long as nothing has been proven, there is a presumption of innocence.

Regardless of whether the relationship has been accepted, one must stick to the objective facts of a relationship of a minor with an adult. We don’t have to look at the state of one or the other person’s soul, the facts remain facts.

The next question is context, and that is what will allow us to decide the prison sentence. This is what we call the mitigating circumstances and it is the only time when we can take into account the mental state of the accused and the child.   

The offence of child sexual abuse is an objective fact. If there is a sexual relationship, it is an objective fact.

If one party is over 18, it is an objective fact, and it is an objective fact to say the other is under 15. It is very simple.

Some people claim that it is adults who are at risk of being “seduced” by children, but even if a child “gives consent”, it is not informed consent.

However, these are subjective elements. If we want to have faith in the courts, we have to stop debating consent, which is, in fact, a get-out clause for adults.

It is up to adults to say “stop” to children. An adult is mature and knows actions have consequences.

The adult is supposed to be mature and the child is immature.

Adults should be responsible. You are an adult, he/she is a child, you have no right to touch a child. It’s very simple, you don’t need to study law to know that.

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