“For me, she agreed”: the Pélicot case questions the integration of consent in the definition of rape

As several co-accused in the Mazan rape case were questioned this week, their speeches highlight the issue of the integration of consent into the definition of rape.

After looking at Dominique Pélicot, who drugged his wife to deliver her to strangers, the Vaucluse criminal court is focusing on the 50 co-accused who are appearing for “aggravated rape”. This week, six men took the stand. For each, the question of Gisèle P&eacutelicot's consent was at the heart of the interrogation. They were all asked a question similar by the presiding judge, Roger Arata: “In your opinion, was Gisèle Pelicot able to give her consent”?”The answer has often been “No”.

One of the accused, Husamettin D., who had denied the facts since his arrest, finally admitted his guilt this Wednesday: “I got the consent from her husband. And I never thought that a guy could do that to his wife (…) Now yes, I recognize that it is rape,” reported France Bleu. Just like Mathieu D., who assured that he “became aware in police custody” of Gisèle Pélicot's lack of consent. 

Fabien S. admitted that “in the excitement", he “didn't pay attention" to the fact that the victim didn't wake up. “The shots where the woman is sleeping, that doesn't interest me at all. (…) I was in the mood, I didn't think she was drugged. I thought she was an accomplice,” he then justified himself. Likewise, for Joan K., who admitted to not “once” having asked herself the question of the victim's consent. He is also one of those who claim that they were not aware of the concept of consent until now, says France Info. For Andy R., who noticed that the woman was “snoring,” the husband's “permission” was enough to keep him from turning back. “For me, she “agreed,” he added.

A trial that rekindles the debate on redefining rape

Husband's permission, lack of knowledge about consent, lack of attention… All the co-accused tried to justify themselves. While they admit that there was no consent from the victim, they maintain the defense's argument that they did not “intend” to rape. They maintain that they thought they were going to the Pélicots' for a swingers' game. Dominique Pélicot, the main accused, on the contrary, stated that they were all well aware of his wife's condition during the sexual acts.

However, consent is not currently included in the definition of rape specified in Article 222-23 of the Criminal Code as “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”. Rape is a crime, but according to Article 121-3 of the Criminal Code, any crime presupposes intent. This is the argument that was notably put forward by the defense lawyer Me de Palma, who assured that “there is rape and rape”, a statement that had been widely criticized. “From the moment that, indeed, there is a guilty intention, from the moment that we manage to provide proof that the person who committed the acts was aware of committing acts of rape, there is rape. Otherwise, there is no rape”, he explained to clarify his position. This situation has thus relaunched the debate on the redefinition of rape, including the integration of the issue of consent.

Didier Migaud, the new Minister of Justice, declared on France Inter this Friday, September 27, that he was in favor of changing the definition of rape in French law, particularly to include the notion of consent. Last March, Emmanuel Macron had given the same speech and wanted a text proposal “by the end of the year”, an initiative disrupted by the dissolution of the National Assembly last June. Some countries like Sweden have already taken the step, rape now being defined as any sexual act without explicit agreement, even in the absence of threat or violence. Will the Mazan trial allow us to reach the same stage in France ?