Last Tuesday, France woke up to news reports that a 28-year-old man and an 11-year-old girl had had âconsensualâ sex.
The events, first reported by the website Mediapart, took place on April 24 in the Paris suburb of Montmagny. That afternoon, the child followed a man, who had already approached her twice in the previous days, telling her he âcould teach her how to kiss and more.â They went to his building, where she performed oral sex in the hallway. Then she followed him to his apartment, where they had sexual intercourse. Afterward, he told her not to talk to anybody about it, kissed her on the forehead and asked to see her again.
On her way back home, the girl called her mother in a state of panic, realizing what had just happened. âPapa is going to think Iâm a slut,â she said. The mother immediately called the police and pressed charges for rape. But citing Article 227-25 of the French criminal code, the public prosecutor stated that âthere had been no violence, no coercion, no threat, no surprise,â and therefore, the man would be charged only with âsexual infraction.â That offense is punishable by five years in prison, while rape entails 20 years of imprisonment when the victim is under 15.
The trial was supposed to start last Tuesday, but it was postponed to February. Meantime, the story caught fire across the country. The widespread outrage put me in mind of the Jacqueline Sauvage case, in which a battered woman who shot her husband in the back in 2012 ended up getting 10 years of prison (a harsh sentence for France). The verdict prompted wrathful comments from pundits, politicians and the public about the French justice system failing to deliver justice to societyâs most vulnerable. (Ms. Sauvage was pardoned and released last year.)
What shocked many French people most of all was not the encounter itself, but that there was a legal possibility of labeling it anything other than rape. If legal norms reflect a societyâs mores, what does this say about France? Petitions started circulating, and politicians would soon echo them: The law must change.
Most European countries have, over the past two decades, set age limits under which a minor simply cannot consent. In Belgium, any sexual intercourse with a child below the age of 14 is rape, punishable up to 20 years, or up to 30 years for victims under 10. In Britain, the age of consent is 16, but specific legal protection exists for children under 13: They cannot legally give their consent to any form of sexual activity. There is a maximum sentence of life imprisonment for ârape, assault by penetration, and causing or inciting a child to engage in sexual activity.â
But in France, as long as âviolence, coercion, threat or surpriseâ is not proven, sexual intercourse with a minor â even one under 15 â is considered an âatteinte sexuelle,â which is an infraction and not a crime. The trial takes place in a âtribunal correctionnel,â which handles infractions, and not at a âcour dâassises,â which is for the most serious crimes like murder or rape.
In 2005, the Cour de Cassation, Franceâs highest criminal court, stipulated that coercion is presumed for children at a âvery young age.â Thatâs an outrageously blurry formulation that in practice has largely been applied to children under 6. This leaves children above 6 potentially considered not raped when violence cannot be established. It also allows the state of paralyzed shock experienced by many victims â and all the more so children â to equal consent.
In 2010, a new law introduced the question of age difference between the victim and the perpetrator from which âmoral coercionâ could result, expanding the notion of force beyond physical violence. But once again, the difference in age was not precisely qualified. In February 2015, the Constitutional Council reasserted that French law âdoes not set an age of discernment in regards to sexual relations: It is for the courts to determine whether the minor was capable of consenting to the sexual relationship in question.â
France doesnât exactly have a sterling record when it comes to labeling sexual criminality. It took two centuries for sexual crimes against children to be considered so by the law. The penal code of 1810, established by Napoleon, did not say much about sexual behavior, âas if sexuality were not to fall under the law,â the philosopher Michel Foucault said in 1978. He deplored the growing âweightâ of the laws âcontrollingâ sexuality during the 19th and 20th century.
Foucault was writing a year after the cream of the French intelligentsia published an open letter in Le Monde defending three men charged with having sexual relations with children under the age of 15. The list of signatories included Jean-Paul Sartre, Simone de Beauvoir, Gilles Deleuze, Roland Barthes, Philippe Sollers, AndrÃ© Glucksmann and Louis Aragon. âWe consider that there is an incongruity,â the letter read, âbetween the outdated nature of the law and the everyday reality of a society which tends to recognize the existence of a sexual life in children and adolescents (if a 13-year-old girl has the right to be on the pill, what is it for?).â
Interdiction, the thinking went, belonged to the old moral order, and it was considered an honor to children to acknowledge that they had desires.
Fortunately, the mainstream culture has turned away from this pedophile-chic ethos. But if France has continued to be reluctant to define a firm age of consent, it probably has to do with the lingering vestiges of idealized sexual freedom.
And linger it does. When the Roman Polanski case resurfaced in 2009, I remember an outraged Alain Finkielkraut, one of the most visible public intellectuals in France, saying on the radio that Mr. Polanskiâs 13-year-old victim, Samantha Geimer (nee Gailey), âwasnât a little girlâ because she had agreed to be photographed topless, expressing the all too common belief (and likely hope) that girls and boys can indeed be sexual at a young age.
I grew up in Paris, a very free little girl playing in the streets and riding the Metro. By the time I was 15, I had been exposed to more flashers than I care to remember, a few âfrotteursâ (men who take advantage of the crowded trains to rub up against their prey), and one man who followed me into my building to have a conversation about my sexual habits when I was about 8. When I was only dreaming about boys my age, I already was very familiar with the chilling effect of adults inserting themselves into my intimate life.
This was how city kids grew up in the aftermath of sexual âliberationâ: navigating these uncomfortable interactions, unaware we maybe were escaping something worse.
Today, I canât look through the window into a classroom other than my daughterâs without being called to order by the headmistress. Still, what horrifies us as a society and seems to belong to common sense â that every instance of sexual intercourse with a child is, by definition, violent â has been left by the law to be examined case by case. The assault in Montmagny must serve as a moral wake-up call for France.
Valentine Faure is writing a book about the Jacqueline Sauvage case.