A-Infos (en) France, UCL AL #361 - Antipatriarchy - Consent: The Difficulty of Defining Rape (ca, de, fr, it, pt, tr)[machine translation]

According to the Ministry of the Interior's "Experiences and Perceptions 
of Security" report, in 2021 there were 58,000 rapes and 89,000 
attempted rapes (in addition to 182,000 sexual assaults) perpetrated 
against women aged 18 to 74 in France. Women represent 85% of victims. 
However, less than 1% of these rapes result in a conviction, because few 
victims file complaints (around 10%), and because their efforts are 
often unsuccessful. Would a change in the definition of French law 
improve the situation?

On Tuesday, February 6, 2024, the Council of the European Union (EU) and 
the European Parliament adopted a directive against violence against 
women. This directive criminalizes forced marriages, genital mutilation, 
and sexual harassment. It requires EU states to facilitate the reporting 
of domestic and sexual violence and to protect victims. Other measures 
concern cyberbullying and privacy. Regarding rape, states must provide 
counseling and shelters, and organize prevention campaigns by raising 
awareness about consent.

But there was no agreement on a common definition of rape. The plan was 
to define it as the absence of consent to the sexual act. This failed; 
France was among the ten countries opposed to this definition. Emmanuel 
Macron, who is not above inconsistencies, subsequently declared that he 
wanted to enshrine the notion of consent in French law. Another instance 
of "at the same time"? In early April 2025, the National Assembly 
adopted a bill amending the definition of rape and forwarded it to the 
Senate.

This episode in European legal life allowed for the exchange of 
arguments within society before a proposal reached our parliamentarians. 
French law (before this text and therefore still today) defines rape as 
follows: "any act of sexual penetration, of whatever nature, or any 
oral-genital act committed against another person or against the 
perpetrator by violence, coercion, threat, or surprise is rape."

A definition based on the rapist's behavior
The consequence of this formulation is that it is the victims who must 
prove they resisted. And, for those unaware that more than 90% of rapes 
are committed by a close relative, the archetypal rapist remains the 
violent assailant in a parking lot at night. But on the other hand, this 
formulation has the advantage of only addressing the rapist's 
responsibility, their behavior, and their intent (even if in our 
society, the burden of proof lies with the victim).

The bill currently under discussion, which applies to rape as well as 
sexual assault in general, is as follows: "any non-consensual sexual act 
committed against another person or against the perpetrator. For the 
purposes of this section, consent is free and informed, specific, prior, 
and revocable. It is assessed in light of the surrounding circumstances. 
It cannot be inferred solely from the victim's silence or lack of 
reaction. There is no consent if the sexual act is committed with 
violence, coercion, threat, or surprise, whatever their nature."

What the authors of this text are saying is that consent to sexual 
intercourse must be given "without coercion," with sufficient prior 
information, and that consent applies only to a given situation and can 
be withdrawn at any time. Some countries have already incorporated the 
concept of explicit consent into their legislation: Sweden, Canada, and 
Spain.

An Effectiveness Sometimes Questioned
A significant portion of liberal feminist movements supports this 
integration, placing great hopes on the fact that this change will allow 
for the prosecution of many cases of sexual violence that currently 
result in dismissal or non-conviction. But is this really the case? 
Clara Serra observes that the introduction of what she calls a "doctrine 
of consent" is taking place in countries that already recognize the 
paradigm of sexual freedom. The current problem facing Western 
legislation is therefore not so much one of principle as one of 
proof[1]. For example, if this new law is introduced, will judges use it 
to shift the burden of proving the victim's consent onto the rapist? Or 
will it lead to the victim's behavior or skirt length being more 
scrutinized under the pretext of determining consent?

Furthermore, Clara Serra notes that including any "sexual act" or 
"attempt" without consent within the scope of the offense in the 
legislation undermines the characterization of the seriousness of such 
sexual violence through its dangerousness or harm. This was illustrated 
in Spain: after the "Solo sí es sí" ("only a yes is a yes") law in 
October 2022, which removed the distinction between "sexual assault" and 
"sexual abuse," which carries lighter penalties, many perpetrators 
benefited from sentence reductions or early release... This led the 
Podemos party to surreptitiously amend the text a few months later.

Feminist Critiques of Consent
Beyond its actual effectiveness in the law, it is the very notion of 
consent as defined by liberals that is criticized. Thus, for American 
legal scholar Catharine MacKinnon, rape is not so much unwanted sex as 
unequal sex, and must be understood as a "crime of gender inequality" 
committed by men against women. She believes that consent, by failing to 
take into account relationships of domination and the fundamental 
asymmetry of the positions in which it occurs, is an inherently unequal 
concept[2].

Indeed, we continue to individualize fault and fail to examine the 
systemic mechanisms behind sexual violence! However... Even in this 
discourse, aren't we forgetting relationships outside of heterosexual 
contexts? Shouldn't we also consider how rape convictions can be used by 
the state as a means of repression against marginalized populations such 
as LGBTI or racialized people? Finally, do we really want the state to 
have a say in our search for the desire of the other, "so obscure, 
uncertain, and incomplete," as Clara Serra writes? Isn't it preferable 
for this research to be conducted without the threat of state 
repression, in an approach of restorative justice?

Finally, let us quote these words from Clara Serra: "When public opinion 
embraces punitiveness, criminal law becomes the main instrument citizens 
rely on to resolve their ills. But instead of making our societies more 
aware and considerate, this only reinforces a collective blindness that 
prevents us from recognizing and naming these wounds about which the law 
has nothing to say, and which nonetheless exist."[3]

Christine (UCL Sarthe) and Johanna (UCL Finistère)

Confirm

[1]Clara Serra, The Doctrine of Consent, La Fabrique, 2025.

[2]Johanna Lenne-Cornuez, "Consent, a Harmful Concept?"», La Vie des 
idées, January 2024.

[3]Clara Serra, The Doctrine of Consent, La Fabrique, 2025.

https://www.unioncommunistelibertaire.org/?Consentement-De-la-difficulte-a-definir-le-viol
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