France redefines rape law to centre on consent

France has passed a bill defining rape and sexual assault as any non-consensual sexual act after senators gave their final approval on Wednesday this week. 

The move comes following the conviction of 51 men for rape and abuse in the case of Gisèle Pelicot, though certain MPs have sought changes since 2023.

Ms Pelicot was repeatedly raped and sexually assaulted over a period of several years by men invited by her then-husband after she had been drugged unconscious. The crime was uncovered when her husband’s recordings of the acts were found on his personal devices.

During the trial, the notion of whether she had given ‘consent’ for the acts became central to the defence of many men on trial for the crime.

The final version of the bill to update France’s Penal Code was passed unanimously in the Senate on October 29, with 327 votes in favour and 0 against, and 15 abstentions.

It had passed through the Assemblée nationale last week, with 155 votes in favour to 31 against, with some far-right MPs voting against the change.

“When it is no, it means no. When it is not no, it does not mean it is yes. When it is yes, it must be a genuine yes… and giving in will never again be consenting,” said co-sponsor of the bill, Green MP Marie-Charlotte Garin.

Changes expected to come into effect within the next 15 days 

The law will update France’s Penal Code to state that consent is ‘informed, specific, prior, and revocable’ and cannot be ‘inferred solely from the silence or lack of reaction of the victim’ (in French: ‘éclairé, spécifique, préalable et révocable [et ne pouvant] être déduit du seul silence ou de la seule absence de réaction de la victime’).

The text also specifies that ‘there is no consent if the sexual act is committed with violence, coercion, threats, or by taking advantage of the victim’s surprise, whatever their nature’ (‘il n'y a pas de consentement si l’acte à caractère sexuel est commis avec violence, contrainte, menace ou surprise, quelle que soit leur nature’). 

These four elements are those currently used by judges to assess if a sexual assault has taken place. 

The changes mean that in addition to these four criteria, non-consent will be assessed based on individual cases. Even without any of these in place, consent may still not have been given, leading to a rape or sexual assault conviction.

Those accused of rape or sexual assault will now have to explain how consent was given, as opposed to accusers explaining it was not given. The timeframe of the changes mean that there is no case law for how this can be achieved. 

In addition, the definition of rape has been expanded to include oral and anal penetration. 

The changes will not apply to any acts committed before the law comes into force which will happen in the next 15 days unless MPs petition the Constitutional Council to pass judgement on the bill. This is considered unlikely in the face of its largely unopposed passing.

‘A victory over oppression’ 

The change was hailed as a “victory of freedom over oppression,” by former Delegate Minister for Equality Isabelle Rome.

It “will change the course of investigations… [and allow for] more prosecutions and more convictions,” she said to France Info.

“This law will not solve everything; we must ensure its implementation,” added fellow co-sponsor, centrist MP Véronique Riotton. “We want the investigation to be truly focused on the perpetrator and how they obtained consent.”