Can an 11-Year-Old Girl Consent to Sex?

Last Tuesday, France woke up to news reports that a 28-year-old man and an 11-year-old girl had had “consensual” 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 “could teach her how to kiss and more.” 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. “Papa is going to think I’m a slut,” 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 “there had been no violence, no coercion, no threat, no surprise,” and therefore, the man would be charged only with “sexual infraction.” 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 society’s 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 society’s 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 “rape, assault by penetration, and causing or inciting a child to engage in sexual activity.”

But in France, as long as “violence, coercion, threat or surprise” is not proven, sexual intercourse with a minor — even one under 15 — is considered an “atteinte sexuelle,” which is an infraction and not a crime. The trial takes place in a “tribunal correctionnel,” which handles infractions, and not at a “cour d’assises,” which is for the most serious crimes like murder or rape.

In 2005, the Cour de Cassation, France’s highest criminal court, stipulated that coercion is presumed for children at a “very young age.” That’s 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 — and all the more so children — to equal consent.

In 2010, a new law introduced the question of age difference between the victim and the perpetrator from which “moral coercion” 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 “does 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.”

France doesn’t 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, “as if sexuality were not to fall under the law,” the philosopher Michel Foucault said in 1978. He deplored the growing “weight” of the laws “controlling” 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, André Glucksmann and Louis Aragon. “We consider that there is an incongruity,” the letter read, “between 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?).”

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. Polanski’s 13-year-old victim, Samantha Geimer (nee Gailey), “wasn’t a little girl” 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 “frotteurs” (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 “liberation”: navigating these uncomfortable interactions, unaware we maybe were escaping something worse.

Today, I can’t look through the window into a classroom other than my daughter’s without being called to order by the headmistress. Still, what horrifies us as a society and seems to belong to common sense — that every instance of sexual intercourse with a child is, by definition, violent — 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.