While the Senate this week adopted a bill setting the sexual consent of minors at the age of 13, several voices were raised to denounce the measure.
The president of the magistrates' union, Katia Dubreuil, clarified on Europe 1 the reasons which make setting an age of non-consent is complicated for the courts.
The Senate this week unanimously adopted a bill setting the sexual consent of minors at the age of 13.
Indeed in French law, the notion of consent does not exist as such.
The law recognizes the right of a minor to have sexual relations with an adult from the age of 15 only.
Katia Dubreuil, president of the magistrate's union, explained on Europe 1 why the bill passed by the Senate is debated within the justice system and the government.
Already clear provisions in the law
"The law already sets out very clearly the fact that the minor must not be seen as an adult with regard to sexual relations, that he must be specifically protected", recalls Katia Dubreuil.
First, she explains, "there is a crime of sexual assault on minors under the age of 15. So it's not even 13 years old, it's 15 years old, and it's 7 years old. of imprisonment incurred for any sexual act, whether or not there is consent committed by an adult over 18 years of age on a minor under 15 years. "
Then, she adds, "concerning rape offenses which are punished more severely, 20 years of criminal imprisonment incurred when it is a rape of a minor, the case law (all of the court decisions rendered by the courts and tribunals) obviously already retains the fact that there may be a moral constraint depending on the age of the victim. We consider that, and we look at it on a case-by-case basis, young victims do not have the sufficient discernment to be able to consent to a sexual act. And therefore that there may be moral constraint and rape, even if the victim has not resisted ".
This question of constraint is even more accepted, says Katia Dubreuil, "if it is in the family, if there is an incestuous act because we will obviously consider that there is an authority of the author on the victim ".
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This case law was somehow written into the law in 2010 and 2018, assures the magistrate: "since 2010, then recently since 2018, we have written this case law into the law by saying that when there is a difference in age and an authority of the perpetrator over the victim or when there is an absence of discernment linked to age, it is a constraint. "
Automation of the criminal response in question
Marlène Schiappa and Nicole Belloubet, Minister of Justice at the time, had presented a bill aiming to establish at 15 years the minimum age of consent.
It hadn't happened at the time.
"This would mean that in order to assess whether a crime has been committed and punished with a very heavy penalty, the penal response would be automated, without looking on a case-by-case basis, whether the minor was actually able or not to consent to the act according to the history, the relationship, its psychological maturity, and without having to look if the author was indeed aware of exerting a moral constraint on the victim ".
However, continues Katia Dubreuil, "the age at which we would be sure that in all cases, there can be no consent, is very difficult to define. Some say 13 years, others 14, others 15. So we don't have an age where it is absolutely possible to say that under that age, any minor would be raped if there was a sexual relationship with an adult. "
A provision that could be unconstitutional
One of the consequences of automating the judgment in this way, according to her, would therefore be that "we would risk catching situations in which, in reality, it is not a matter of rape or a wrongdoing. ", continues Katia Dubreuil, who gives the example of a 14-year-old minor who would have sexual relations within the framework of a consensual relationship with a young man of 18 years.
"Should we provide in the law that, automatically, this would be qualified as rape punishable by 20 years of criminal imprisonment?"
This is why, at the time, the Council of State told the government that the Constitutional Council would risk considering this automation as unconstitutional.
According to Katia Dubreuil, the current turnaround is due "to the emotion caused by the seriousness of this type of act, to the fact that we can see that there are many acts of this type which are committed with complete impunity. , with the difficulty for justice to answer them ".
But she believes that the case by case is essential.
Incestuous rape would be "easy to demonstrate"
The Duhamel affair has indeed put back on the table the silence that surrounds in particular cases of incest and the difficulty for victims to speak.
But justice already takes into account the aggravating nature of incest, assures the president of the magistrate's union, even though incest with a minor is not registered as a criminal act as such in the Penal Code.
"What is punishable is coercion, the absence of consent. When it is a relationship in the family between a child and an adult, justice will consider very clearly that there can be no consent of a child, for example when his father or his stepfather commits acts of a sexual nature on him. It is punishable and it is punishable as rape of incest ", specifies Katia Dubreuil.
"Incest only comes into the qualification when the rape itself is proven, but rape, in terms of incest, is in itself very easy to demonstrate."