France, Where Age of Consent Is Up for Debate

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A case involving an 11-year-old girl has sparked a moment of moral and legal reckoning.

Olga Sapegina / photosync / Shutterstock / Zak Bickel / The Atlantic

MARIE DOEZEMA

On april 24, 2017, a 28-year-old-man met an 11-year-old girl in a park in Montmagny, just north of Paris, after which, he took her home where he had oral and vaginal sex with her. When it was over, the girl called her mother and described what had happened, and her mother called the police. “She thought … that she didn’t have the right to protest, that it wouldn’t make any difference,” the mother told Mediapart, a French investigative site which first reported on the allegations of the case. The accusations were of an adult raping a child—a crime that, in France, can lead to a 20-year prison sentence for the perpetrator when the victim is 15 or younger.

But it initially wasn’t charged that way. When the case first went to court in September, the man faced only charges of “sexual infraction,” a crime punishable with a maximum of five years in jail and a €75,000 fine. Under French law, a charge of rape requires “violence, coercion, threat, or surprise,” even if the victims are as young as the girl in the Montmagny case. When the case, initially postponed, went back to court in February, the man’s attorneys did not deny the sexual encounter but argued that the girl had been capable of consenting. “She was 11 years and 10 months old, so nearly 12 years old,” defense lawyer Marc Goudarzian said. Sandrine Parise-Heideiger, his fellow defense lawyer, added: “We are not dealing with a sexual predator on a poor little faultless goose.”

Such a defense flies in the face of legal and cultural consensus in most Western nations, and much of the world. “With children there is inevitably coercion,” Ernestine Ronai, co-president of the gender-based violence commission at the government’s High Council for Equality between Women and Men, told me. “It is indefensible that a girl of 11 could be considered consenting with a 28-year-old man. This is shocking,” she added.

Indeed, the judge did ultimately order that rape charges be filed, in what Carine Durrieu-Diebolt, the attorney for the girl and her family, called a “victory for victims.” The case has been postponed to allow for a more thorough investigation into the allegations. But in the meantime, it has also provoked an unprecedented backlash that has resulted in France considering a change to a longstanding, anomalous feature of its laws: Up to now, there has been no legal age of consent for sex.

Under french law, “rape” is defined as “any act of sexual penetration, of whatever nature, committed on the person of another by violence, coercion, threat or surprise.” Yet unlike elsewhere, there is no presumption of coercion if a sexual minor is involved. Most other countries in Europe, including SpainBelgiumBritainSwitzerlandDenmark and Austria, have a legal age of consent. Most of the age minimums range between 14 and 16 years of age. Fixing a specific age of consent means that children and adolescents below that age cannot, regardless of circumstances, be considered consenting to sex; their very age renders them incapable. As a result, an adult in most European nations who has sex with someone under this age would be charged with rape, even if violent force is not used.

The medical rationale for age-of-consent laws is clear: Children are developmentally  unprepared to give informed consent, and it can be extremely difficult for them to say no to people in positions of authority, or those they trust. According to the World Health Organization (WHO)’s guidelines: “The sexual abuse of children is a unique phenomenon; the dynamics are often very different to that of adult sexual abuse and therefore abuse of this nature cannot be handled in the same way.” The WHO has found that adult perpetrators also rarely use physical force or violence on children, relying instead on their ability to “manipulate the child’s trust and hide the abuse.” WHO’s formal definition of child sexual abuse is “the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society.” For these reasons, France’s lack of a clearly specified age of consent is an anomaly.

While French law does not include a fixed age of consent, it does recognize sexual minors. A sexual minor can still legally be considered able to give their consent—in this case, their perpetrator would be charged with sexual infraction, not rape. In the 19th century, the age at which children were considered sexual minors was 11; later, it was raised to 13, and since 1945, it has been 15. Meanwhile, the issue of consent—or the failure to establish a clear age of consent—festered. In 2005, spurred on by a case involving the sexual abuse of three children under the age of five, France’s highest court ruled that sexual “coercion is presumed to be present in cases involving children of a very young age,” and that lawmakers must establish an age at which it should be assumed that a child could not consent. Exactly what this age should be was left up to judges to decide. While a law was passed in February 2010 specifying that “moral coercion” could result from a “difference in age,” what that age actually should be was, again, left unclear. In 2015, France’s highest court reaffirmed that there is no set age of consent when it comes to sexual relations.

But in October 2016, the High Council for Equality between Women and Men published a report on sexual violence in France. The council found that 20.4 percent of women reported experiencing at least one form of sexual violence over their lifetimes. For 6.8 percent of them, the crime they suffered was rape, as French law defines it: “any act of sexual penetration, of any nature, committed by violence, coercion, threat, or surprise. ” For 9.1 percent, it was attempted rape. Among the victims, 59 percent suffered their rape or sexual assault before they turned 18. In its conclusion, the Council recommended establishing the still comparably low age of 13 as the age of consent. “We must start taking better care of victims,” Ronai told me in November. “We have to stop asking why: Why were you in the street alone? Why didn’t you scream? Why didn’t you leave?”

Muriel Salmona, a psychiatrist and president of the Traumatic Memory and Victimology Association, an advocacy group for victims, told me that a child’s inability to say no to a sexual predator is exactly why the law needs to protect them. “It’s a total lack of common sense,” she said. When children appear emotionally disengaged or numb in court, judges can assume they were not affected by their experience—in other words, that they consented, Salmona argued. The lack of a set age of consent leaves cases of sexual abuse involving children and minors up to the discretion of individual judges; furthermore, cases of rape are too often downgraded to sexual assault because such cases are considered “faster and easier” to move through the courts, Salmona said.

Salmona called the lack of a precise age of consent in France a “legal horror.” As she described in a 2015 paper, “Children are a prime target of sexual predators … They are vulnerable, helpless, dependent and under the authority of adults. It’s easy to manipulate, threaten, and silence them. Because of their immaturity, it is much harder to identify what they have suffered and they are rarely seen as credible when they get to talk.”

Why has the french legal system seemed reluctant to set a specific age of consent?

One prominent explanation stems from the attitudes that followed May 1968, when student protests against capitalism, consumerism, and other values and institutions considered elitist and unjust, led to massive demonstrations, strikes, and civil unrest. The protests represented a cultural revolution that would leave a lasting imprint on France’s very identity. Salmona said that after 1968, attitudes began to shift: Children were viewed as having the right to be considered sexual beings—in Salmona’s words: “pedophilia was considered a sexual orientation … It was all part of a vision of freedom.”

That a nation’s moral position on an issue as provocative and seemingly incontrovertible as a child’s sexuality could turn on a protest, even one as historic as May 1968, may seem unbelievable. But as Pierre Verdrager wrote in Forbidden Child: How Pedophilia Became Scandalous, defenders of pedophilia gained considerable leverage in the post-1968 sexual revolution, particularly among an elite circle of intellectuals. “In the 1970s and 1980s, the question of the relationship between adults and children and the issues of rights and the autonomy of minors were recurrent in the press (in France),” he wrote. “The identification of the potentially sexual nature of the relationship between adults and children was one of the ways of going against the bourgeois order.”

Similarly, following the protests, “a general atmosphere of sexual freedom and liberalization of lifestyles” took hold, one that bolstered “a movement in favor of pedophilia,” as Jean-Hugues Déchaux, a sociologist at the Max Weber Center in Lyon, wrote in a 2014 critique of Verdrager’s book in the French Review of Sociology. In those years, Déchaux wrote, pro-pedophilia activists even formed associations with names like the Pedophile Liberation Front, the Research Action Front for a Different Childhood, and the Research Group for a Different Childhood. Pedophiles also began publishing their own journals, with titles like Backside, Le Petit Gredin, or “The Little Rogue,” and P’tit Loup, or “The Little Wolf.” French intellectuals including Guy Hocquenghem, Gabriel Matzneff, and René Schérer became spokespeople for the movement. “[O]pponents of pedophilia were accused of being ‘reactionary’ and pedophiles were redefined not as guilty of sexual abuse but as victims, like homosexuals, of ‘retrograde’ legislation”—a reference to laws of the era that criminalized homosexuality and pedophilia.

There was widespread rejection of the movement—including vocal pushback from feminists, family therapists, and a handful of women in government.  Additionally, as Déchaux has argued, the open embrace of pedophilia by some elements of France’s intellectual elite in the 1970s and 1980s “says nothing about public opinion itself and even less about the reality of social and family practices.” While certain French media and intellectuals defended pedophilia during this period, the 1990s saw a dramatic shift, both in rhetoric and public consciousness, characterized in part by “new, sharp public attention to the issues of child sexual abuse and incest.” Pressure from groups concerned about the problem of family violence—feminists groups, in particular—also succeeded in drawing more political attention to these issues.

Indeed, pro-pedophilia activists faced a challenge: French people recognized that a sexual relationship between an adult and a child was, by definition, an unequal one. So, as Déchaux wrote, the nascent pro-pedophilia lobby attempted to “symmetricize” the relationship. In their writing, they characterized children as “clear-thinking, endowed with volition and discernment.” From this, it followed, they deserved the same rights as adults. “The notion of child protection was [deemed] patriarchal and denounced as a danger to the child’s personal integrity,” Déchaux wrote.

After May 1968, French intellectuals would challenge the state’s authority to protect minors from sexual abuse. In one prominent example, on January 26, 1977, Le Monde, a French newspaper, published a petition signed by the era’s most prominent intellectuals—including Jean-Paul Sartre, Simone de Beauvoir, Gilles Deleuze, Roland Barthes, Philippe Sollers, André Glucksmann and Louis Aragon—in defense of three men on trial for engaging in sexual acts with minors. “French law recognizes in 13- and 14-year-olds a capacity for discernment that it can judge and punish,” the petition stated, “But it rejects such a capacity when the child’s emotional and sexual life is concerned.” Furthermore, the signatories argued, children and adolescents have the right to a sexual life: “If a 13-year-old girl has the right to take the pill, what is it for?” It’s unclear what impact, if any, the petition had. The defendants were sentenced to five years in prison, but did not serve their full sentences.

In 1979, Liberation published another petition, this time in support of Gérard R., a man on trial for having sex with girls between the ages of six and 12. It was signed by 63 people, many of them well-known intellectuals like Christiane Rochefort and Pascal Bruckner. It argued that the girls in question were “happy” with the situation. “The love of children is also the love of their bodies,” they wrote. “Desire and sexual games have their place in the relationship between children and adults. This is what Gérard R. thought and experienced with [the] girls … whose fulfillment proved to everyone, including their parents, the happiness they found with him.”

What the endorsements from prominent French intellectuals suggested was that young children possessed a right to govern their own sexuality. Under this interpretation of liberté, young children were empowered to find happiness in sexual relationships; their ability to consent was a foregone conclusion. Any effort to suggest otherwise would be a condescension, a disrespect to them as fully realized human beings. In a radio interview in 1978, Michel Foucault said of sex with minors that assuming “that a child is incapable of explaining what happened and was incapable of giving his consent are two abuses that are intolerable, quite unacceptable.”

“People have a hard time admitting they were colonized by the discourse of pedocriminals,” Salmona told me. France in the 1970s and 1980s, she said, was an “atrocious” era for children, an active time for a very unapologetic “pedocriminal lobby.”

Yet it’s hard to know exactly how widespread the so-called pedocriminal lobby’s influence reached. On the one hand, as sociologist and criminologist Patrice Corriveau wrote in 2011, the number of sexual abuse cases involving children in France had been on the rise since 1972. By 1982, he found, sexual offenses against minors had increased by nearly 22 percent—meaning, it seemed as though the stigma against child sex abuse was encouraging victims to come forward. At the same time, while the number of reported cases was on the rise, convictions for homosexual acts with minors were decreasing. As Corriveau explained: “In France … sexual behaviors, homoerotic or not, dropped in importance on the level of judicial intervention as the sexual revolution took hold. In fact, morals offense represented only 0.54 percent of overall criminality in France in 1982.”

It’s also clear that, in the decades since publishing their pro-pedophilia pieces, Le Monde and Liberation have sought to correct their past wrongs. In an article from 2001 in Liberation, journalist Sorj Chalandon described the post-1968 world in France as one gigantic social experiment, including when it came to pedophilia: “The moral order. That’s the enemy. And Liberation at this time is nothing but an echo of the common vertigo,” Chalandon wrote. He characterized the mood of the time as one of challenging “‘any form of authority.’ It’s more than a period, it’s a laboratory.”

But if public opinion in France has evolved in recent decades, the country’s legal institutions have been slow to catch up. The legal status quo leaves too much up to the subjectivity of judges, Durrieu-Diebolt said. “There are some [professionals] who have very good instincts from experience or simply their humanity. There are others who have had training but don’t have the humanity to go with it.”

While the montmagny case and another, similar one involving a 30-year-old man who was  acquitted of raping an 11-year-old girl last fall after the prosecution failed to prove the encounter was not consensual may have done much to raise awareness, another problem persists: In France and elsewhere, a certain privilege is given to perpetrators in positions of power, particularly intellectuals and artists. Roman Polanski found a safe haven in France after fleeing rape charges in the United States in 1978, and has received support from prominent figures like former cultural minster Frédéric Mitterrand, who has blamed efforts to hold him accountable on American hysteria.

The recent cases in France involving children, as well as the privilege enjoyed by figures like Polanski, represent what Secretary of State for Gender Equality Marlène Schiappa called the country’s rape culture. “It’s not only in France, but it’s everything that contributes to minimalize, excuse, or relativize rapes and sexual assault, which leads to a certain tolerance of these crimes in society,” she told me in her office last fall.

In France, Mediapart’s investigation of the Montmagny case, published in late September, was met with horror. According to Durrieu-Diebolt, the story’s impact came from its thoroughness: In addition to detailed reporting on the case, it included a clear legal analysis of the French legal system’s glaring shortcomings. The piece, like Durrieu-Diebolt’s own published work on the subject, argued that France was an exception, a place where the lack of an age threshold under which an adolescent or child cannot be considered consenting has led to tragic consequences. “France is late. Most European legislation has adopted an [irrefutable] presumption of lack of consent of the minor victim of sexual acts, with an age threshold, generally between 12 and 14 years,” Durrieu-Diebolt said in an online legal review. “Should we not now set an age threshold below which our society, like other European countries, would consider that a child does not freely consent to sexual intercourse with an adult?” she wrote.

According to Salmona, the case also provoked a national “movement of indignation” because it coincided with the reverberations in France surrounding the story of Harvey Weinstein’s serial sexual abuses. “This is a moment of raised awareness,” Schiappa agreed. “But we have to make sure it’s followed by concrete changes.”

Schiappa has begun pushing for those concrete changes, including proposed legislation that would set the age of consent at 15, to match France’s law about sexual minors; an extension of the time limit for prosecution of sexual crimes from 20 to 30 years; and fines for perpetrators of street harassment. She will present her wider bill against gender-based and sexual violence in the Council of Ministers on March 21. “The large majority of people are favorable to these changes,” she told me.

For her part, Durrieu-Diebolt has unreservedly endorsed an age of consent while defending the presumption of innocence—she does not see a conflict between the two. “We have to find an equilibrium between considering the victim and maintaining a presumption of innocence,” she said. “We have to respect both parts—we can’t go to either extreme.”

“What it comes down to is this,” Schiappa said. “Do we think rape is serious or is it tolerable depending on circumstances?”

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