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France

Age of non-consent on trial in France amid controversial rulings

© Fred Tanneau, AFP | A lawyer holds a copy of the penal code on June 30, 2017 in Quimper, western France.

Video by Haxie MEYERS-BELKIN

Text by Tracy MCNICOLL

Latest update : 2017-11-14

A pair of court decisions has raised public ire in France by appearing to minimise allegations of sexual assault on two 11-year-old girls, prompting calls for legislation that better protects children in sex cases and government pledges to act.

While Americans debate Alabama Republican Senate candidate Roy Moore’s suitability for office, decades after the former state judge is alleged to have made sexual advances on minors as young as 14 – prompting Twitter users to launch a #MeAt14 hashtag campaign meant to illustrate their sexual immaturity in photos at that age – France is in the midst of its own pitched debate on minors and consent.

Two separate Paris-area courts in recent weeks have delivered decisions that shined a spotlight on the fact that France, unlike many of its European neighbours, has not inscribed into law an age before which it is presumed a child cannot consent to sex.

Last week in Meaux, east of the French capital, a jury acquitted a man accused of raping an 11-year-old girl in 2009. It decided that the prosecution had not sufficiently established any of the elements that legally constitute rape in France, which are “constraint, threat, violence or surprise”.

The accused in the case was 22 when he approached an 11-year-old girl playing with her cousin in an apartment building courtyard in Champs-sur-Marne in August 2009. At trial, the defense had argued that the sexual relations that followed in a park were consensual and that the alleged victim had lied about her age, saying she was nearly 15, a claim the girl denied. The girl’s family did not learn of the incident until 2010, when it was discovered she was pregnant. She later gave birth to a child, now aged 7, who was taken into foster care.

'Legal breach'

“I pled the law, only the law,” the accused’s lawyer said after the decision in Meaux. “It is up to lawmakers to change the law. It is up to neither the lawyer nor the accused to carry the responsibility of this legal breach.” The prosecution’s appeal is reportedly pending.

That verdict came down only weeks after prosecutors in Pontoise, northwest of Paris, decided to bring proceedings against a 28-year-old man for “sexual abuse” – and, critically, not for “rape” – after he had sexual relations with another 11-year-old that investigators considered were consensual. That girl’s family had filed a rape complaint, arguing the girl had been stunned and did not consent. The case is to be tried in February.

“How do we still dare reproach victims of sexual and sexist violence for so rarely pressing charges when decisions as unfair as this are handed down?” asked the women’s rights group Les Effronté-e-s, in response to last week’s acquittal.

“The French justice system is made so that we don’t, contrary to other countries including Britain, have a presumption of the absence of consent for young children,” said Paris lawyer Pascal Cussigh.

“And so one must establish – even if a child is 7, 9 or 11 years old – that the child did not consent to a sexual act with an adult,” says Cussigh, who also heads Coup de Pouce, a children’s rights association.

Cussigh explains that jurisprudence handed down from France’s final court of appeal has, at least in practice, made it unnecessary to prove the absence of consent in cases of sexual assault and rape on very young children up to the age of 6.

“But the problem fully remains for children aged 7 or 11 years old, as in the cases in Pontoise and Meaux,” he says. “The trouble is, if one cannot provide proof that there was constraint, the infraction falls apart. And the only legal recourse then is what was done in Pontoise, retaining the qualification of sexual abuse.”

'Detrimental for victims'

There is an age threshold in France of 15 before which sexual relations, even consenting, with an adult are considered sexual abuse. But, Cussigh argues, “that system is not at all satisfying, because the penalty the perpetrator risks drops from 20 years to five years, so society’s response is not at all the same".

"And there is a detrimental effect for the victim in that, even if the accused is convicted, the victim hears that, yes, there is a conviction, but we have understood that you were consenting and so you participated in the infraction,” Cussigh said. “I don’t see how the victim in those conditions can get back on track in life with a legal decision like that.”

After the recent controversial legal decisions, 20 rights groups, including Les Effronté-e-s, have called for protesters to gather in front of France’s justice ministry on Tuesday evening, calling in part for the age under which one can presume a lack of consent to be set at 15.

Meanwhile, the French government has set out to reassure the public that fresh legislation to address the problem is imminent.

Marlène Schiappa, France’s state secretary for equality between women and men, said on Sunday that an “indisputable” threshold age under which non-consent is presumed is under discussion as a component of the government’s bill against sexual and sexist violence, due in 2018. The new legislation would mean that “under a certain age, it will be considered that there can be no discussion, ever, on the sexual consent of a child and that all children under a certain age will be automatically considered to have been raped or sexually assaulted”, she told BFM TV on Sunday.

“We are in the process of debating the age. The High Council for Gender Equality recommends 13, lawmakers 15; experts, too,” Schiappa explained. “We have to look at the median European age, the age of emotional maturity. It will play out between 13 and 15.”

“The issue of the age before which a minor’s consent is presumed not to exist is capital because there are evidently situations that are extremely shocking and unacceptable,” Justice Minister Nicole Belloubet told RTL radio on Monday. “Thirteen years old is a conceivable limit. The judge must also have the capacity to assess individual situations, but the age of 13 may be retained,” she said.

Indeed, one judges’ union has criticised the proposed move toward a hard-and-fast threshold. In an open letter in October, the Syndicat national de la magistrature said an “indisputable presumption” of non-consent would “mechanise the response to a criminal infraction punishable by 20 years in prison” and eliminate any consideration of the perpetrator’s intention.

“The judge is best capable of appreciating, depending on the victim’s age and personality, on the context of the sexual act, on the nature of the relationship with the perpetrator, whether the person was constrained one way or the other: Do we want to have our law say that a 14-year-old minor could never in any instance consent to a sexual act with an 18-year-old adult?” the union asked.

Cussigh’s Coup de Pouce, for its part, favours setting a non-consent threshold at 15. But the lawyer suggests any threshold at all would already be a leap in the right direction. “What is certain in any case is that, be it 13 or 15, it will be enormous progress on the previous system … It will vastly improve the current child protection system,” he said.

Date created : 2017-11-13

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