UPDATE ON THE LAW
According to the Criminal Code, there is ABSENCE of consent if there is violence, coercion, threat or surprise.
NOT CONSENT: CRIME
Rape : sexual penetration without consent
Sexual assault : act of a sexual nature, without penetration, and without consent
CONSENT: DELIT
When there is no evidence of violence, or threat, or surprise or coercion, consent is assumed.
It becomes a sexual offense .
Reminder:
The term "sexual abuse" is an anglicism which does not correspond to any criminal offense and which must systematically be replaced by rape, sexual assault or sexual abuse.
In French we abuse alcohol but not children in the sense of sexually assaulting it.
The term "sexual abuse" makes it possible to avoid the brutality of the words and to soften the concept.
Visit the website of Doctor Muriel Salmona:
To understand the pitfalls of French law:
To file a complaint:
https://www.memoiretraumatique.org/que-faire-en-cas-de-violences/procedure-judiciaire.html
What the law says ?
Source: https://www.service-public.fr/particuliers/vosdroits/F2274
The law punishes in particular the following acts:
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Sexual proposals, whatever their content, made by an adult to a minor under 15 years of age, via the internet (on a chat, a social network ...)
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Bribery of a minor, which consists in an adult imposing (possibly via the internet) on a minor, even over 15 years of age, words, acts, scenes or images likely to push him to sexual depravity
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Sexual assault, which is a sexual act without penetration, committed by violence, coercion, threat or surprise
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Sexual abuse, which is an act of sexual penetration without violence, coercion, threat or surprise, when it is committed by an adult over a minor under 15 years of age
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Rape (act of sexual penetration committed by violence, coercion, threat or surprise)
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Use of a minor prostitute
Penalties for sexual offer
Sending sexual propositions to a minor under the age of 15 via the internet (via a chat, social network, etc.) is punishable by 2 years' imprisonment and a € 30,000 fine.
These penalties are increased to 5 years' imprisonment and a € 75,000 fine when the proposals have been followed by a meeting.
Penalties for corruption of minors
Bribery of minors is punished with 5 years in prison and a € 75,000 fine.
Bribery of minors carried out via the internet, in a school, or on administration premises is punishable by:
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7 years in prison and € 100,000 fine, if the victim is over 15 years old,
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10 years in prison and € 100,000 fine, if the victim is less than 15 years old.
Bribery of minors via the Internet is punished with 10 years in prison and a € 1,000,000 fine:
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if it is performed in an organized band,
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and that the victim is less than 15 years old.
Punishment for sexual assault
Sexual assaults other than rape, committed against a minor over 15 years of age, are punished with 7 years in prison and a € 75,000 fine.
If the victim is less than 15 years old, sexual assault other than rape is punished with 10 years in prison and a € 150,000 fine.
The penalties are heavier, in particular in the event of:
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sexual offense committed by a parent (incest), a person having de jure or de facto authority over the victim or abusing the authority conferred on him by his functions,
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use of a weapon,
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or an offense committed by more than one person.
In addition, a sexual offense against a minor committed abroad by a Frenchman or a person usually living in France is punishable by French justice.
Penalties for sexual assault
Sexual abuse only affects minors under the age of 15. She was punished with 7 years in prison and a € 100,000 fine.
The penalties are heavier, in particular in the event of:
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sexual offense committed by a parent (incest), a person having de jure or de facto authority over the victim or abusing the authority conferred on him by his functions,
-
use of a weapon,
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or an offense committed by more than one person.
In addition, a sexual offense against a minor committed abroad by a Frenchman or a person usually living in France is punishable by French justice.
Penalties for rape
Rape of a minor over 15 is punished with 15 years in prison.
If the victim is less than 15 years old, the penalty is then 20 years in prison.
The penalty is also heavier when there are aggravating circumstances, such as:
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sexual offense committed by a parent (incest), a person having de jure or de facto authority over the victim or abusing the authority conferred on him by his functions,
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use of a weapon,
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or an offense committed by more than one person.
In addition, a sexual offense against a minor committed abroad by a Frenchman or a person usually living in France is punishable by French justice.
In case of internet contact
In the event of sexual assault following contact between the author and the victim via the Internet, the penalty incurred is:
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7 years in prison and a € 100,000 fine, if the minor is over 15 years old,
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10 years in prison and a € 150,000 fine if the minor is less than 15 years old.
Sexual abuse following contact between the author and the victim via the Internet is punishable by 20 years in prison.
In the event of rape with contact between the author and the victim via the internet, the penalty is 20 years in prison, regardless of the age of the victim.
How to decide consent or non-consent and thus differentiate the crime from the offense?
Article 222-22
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Modified by LAW n ° 2010-769 of July 9, 2010 - art. 36
Any sexual offense committed with violence, coercion, threat or surprise constitutes a sexual assault.
Rape and other sexual assaults are established when they were imposed on the victim in the circumstances provided for in this section, regardless of the nature of the relationship between the aggressor and his victim, including if they are united by the bonds of marriage.
When sexual assaults are committed abroad against a minor by a French person or by a person ordinarily resident on French territory, French law is applicable by way of derogation from the second paragraph of article 113-6 and the provisions of the second sentence of article 113-8 are not applicable.
Links related to this article
Quote:
Criminal Code - art. 113-6 (V)
Criminal Code - art. 113-8 (V)
Quoted by:
LAW n ° 2012-304 of 6 March 2012 - art. 3, v. init.
Ordinance No. 2013-518 of 20 June 2013 - art. 1, v. init.
DECISION No. 2014-448 QPC of February 6, 2015, c. init.
Notice - art., V. init.
Decree n ° 2019-507 of 24 May 2019 - art. 2
CODE OF CRIMINAL PROCEDURE - art. 2-2 (M)
Education Code - art. L362-5 (V)
Education Code - art. L462-6 (V)
Defense Code. - art. L2336-1 (MMN)
Traffic Laws. - art. R212-4 (V)
Internal Security Code - art. L312-3 (V)
Code of Criminal Procedure - art. 2-3 (V)
Code of Criminal Procedure - art. 2-8 (DV)
Code of Criminal Procedure - art. 706-3 (V)
Code of Criminal Procedure - art. D8-2-2 (VD)
Criminal Code - art. 222-22-1 (V)
Criminal Code - art. 222-33-1 (V)
Criminal Code - art. 227-28-3 (V)
Article 222-22-1
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Amended by LAW n ° 2018-703 of 3 August 2018 - art. 2
The constraint provided for in the first paragraph of article 222-22 can be physical or moral.
When the acts are committed on the person of a minor, the moral duress mentioned in the first paragraph of this article or the surprise mentioned in the first paragraph of article 222-22 may result from the difference in age between the victim and the perpetrator and the de facto or de facto authority exercised over the victim, this de facto authority may be characterized by a significant age difference between the minor victim and the adult author.
When the acts are committed on the person of a minor of fifteen, moral restraint or surprise are characterized by the abuse of the vulnerability of the victim who does not have the necessary discernment for these acts.
Links related to this article
Quote:
Quoted by:
DECISION No. 2014-448 QPC of February 6, 2015 - art. 1, v. init.
DECISION No. 2014-448 QPC of February 6, 2015, c. init.
To decide on consent, the legal texts are not enough, it is also necessary to take into account the case law, that is to say the court decisions rendered because the appreciation of violence by coercion, threat and or surprise remains at the full appreciation of the judges. There is no age of consent in France at the moment, a 5-year-old child can therefore be recognized as consenting to a sexual act! And traumatic amnesia is not recognized as an insurmountable obstacle suspending the limitation period ...
an absence of violence
In JCI. Penal Code, Art 222-22 to 222-33-1, fasc.20. it is not only a question of physical violence, in the legal sense of the term, there is violence if there is threat, coercion or surprise which raises the question of its appreciation when the victim is a young JCI child. Criminal Code, Art. 222-22 to 222-33-1, fasc. 20, no.18. This allowed the distinction between sexual assault if the child is very young and sexual assault if the child is considered to be of the age of sexual awareness.
Legislators have admitted that duress was certain because of the very young age of the victim Cass. crime, 11 June 1992: Bull. crim. n ° 228. - Cass. crim., 11 Sep 2002: JurisData n ° 2002-016184)
Then several decisions of the criminal chamber, considered by their commentators as decisions of principle, came to assure that the surprise could not be deduced from the mere age of the victims (Cass. Crim., March 1, 1995: JurisData n ° 1995-001078 ; Bull. Crim. N ° 92; Dr. pén. 1995, comm. 171, note M. Véron. - Cass. Crim., 21 Oct 1998: JCP G 1998, II, 10215, note D. Mayer; Dr. Pen. 1999, comm. 5, obs. M. Véron; Bull. crim. n ° 274; D. 1999, case law p. 75, note Y. Mayaud. - Cass. crim., May 10, 2001: JurisData n ° 2001-009966; Bull. Crim. N ° 116; Dr. pén. 2001, comm. 110, note M. Véron; RSC 2001, p. 808, obs. Y. Mayaud. - Cass. Crim., Nov. 14, 2001 : JurisData n ° 2001-012109; Bull. Crim. N ° 239) thus making the distinction between aggressions and attacks extremely doubtful.
However, this position did not win the support of the courts of appeal, which continued to consider, with a certain common sense, that there is no consent possible, in practice, for children under 6 years of age. (CA Limoges, Apr. 5, 1995: JurisData n ° 1995-042693. - CA Agen, Apr 24, 1997: JurisData n ° 1997-044810. - CA Paris, Nov. 14, 2000: JurisData n ° 2000-134658. - CA Paris, May 31, 2001: JurisData n ° 2001-154961).
The criminal chamber then, first of all, seemed less firm in certain decisions in which it validated orders for reference to assize courts which seemed to be justified only by the age of the victim (Cass. Crim., 28 Nov. 2001: JurisData n ° 2001-012582 - 5 and a half years) or by ignorance of it in matters of sexuality (Cass. crim., March 18, 1997: JurisData n ° 1997-001918), even if the criminal chamber believed it should defend itself in the letter of its judgments (Cass. crim., March 3, 2001: JurisData n ° 2001-011717). Then, she took the plunge by judging that justifies her decision the court of appeal which, to find an accused person guilty of sexual violence on 3 minors aged between a year and a half and 5 years old, states that the state of coercion or of surprise of the victims can result only from their very young age which made them incapable of realizing the nature and the gravity of the acts which were imposed on them (Cass. crim., Dec. 7, 2005: JurisData n ° 2005-031599; Bull. crim n ° 326; Dr. pén. 2006, comm. 34, note M. Véron; Dr. famille, 2006, comm. 70, note B. de Lamy; AJ pénal 2006, p. 81, obs. C. Saas; D. 2006, p. 1655, obs. T. Garé).
Although some commentators doubted the scope of the reversal (Dr. famille 2006, comm. 70, B. de Lamy), it therefore seemed that the current positive case law was that there must necessarily be violence (and therefore sexual assault ) if the minor is less than 6 years old (age not legally fixed but deductible from the case law Cass. crim., 23 Sep 2015, n ° 13-83.881: JurisData n ° 2015-021030; Dr. pén. 2015, comm. 154, obs. Ph. Conte). Law n ° 2018-703 of 3 August 2018 makes this solution certain by adding to article 222-22-1 a paragraph specifying that “When the acts are committed on the person of a minor of fifteen years, moral duress or surprise are characterized by the abuse of the vulnerability of the victim who does not have the necessary discernment for these acts. ”. The first form of sexual abuse therefore does not concern all children under the age of 15 but those under the age of 15 who are able to understand the nature of the acts offered to them, an understanding failing which these acts would be deemed violent and therefore sexual assault.
Courts of appeal are, on the other hand, very clear in admitting consent exempt from all violence (aggression), but not, of course, of the qualification examined here, by minors under the age of 13 (CA Riom, 4 Sept. 2003: JurisData n ° 2003-221600 - CA Paris, June 14, 2006: JurisData n ° 2006-316011) and 14 years (CA Pau, Nov 18, 2004: JurisData n ° 2004-258394).
In addition, a law n ° 2010-769 of July 9th, 2010 judged useful to specify that “the moral constraint can result from the difference of age existing between a minor victim and the author of the facts and the authority of right or in fact that the latter exercises over this victim ”(Penal Code, art. 222-22-1),“ clarification ”which, on the contrary, raised the problem of the role to be given to this formula. Did the legislator wish to institute, in the circumstances referred to, a presumption of coercion (absolute or rebuttable?) And thus impose the classification of aggression or provide the magistrates with a simple guide of interpretation allowing them to choose between aggression and attack ? Neither of these two possible interpretations was clear from the text. The Constitutional Council, seized on QPC, ruled on February 6. 2015 for the second interpretation: “the second sentence of article 222-22-1 of the Penal Code is only intended to designate certain factual circumstances on which the court seized may rely to assess, on a case-by-case basis, whether the actions denounced were committed with constraint ”(RSC 2015, p. 86, obs. Y. Mayaud. - Solution taken up by the criminal chamber: Cass. crim., 23 Sept. 2015, n ° 13-83.881: JurisData n ° 2015 -021030; Dr. pén. 2015, comm. 154, Ph. Conte et Cass. Crim., Nov 18, 2015, n ° 14-86.100: JurisData n ° 2015-029658; Dr. Pén. 2016, comm. 24, Ph. Tale). Law n ° 2018-703 of 3 August 2018 therefore does not change anything when it adds a paragraph worded as follows: “When the acts are committed on the person of a minor, the moral duress mentioned in the first paragraph of this article or the surprise mentioned in the first paragraph of article 222-22 may result from the difference in age between the victim and the perpetrator and from the authority of law or fact that the latter exercises over the victim, this de facto authority which may be characterized by a significant difference in age between the minor victim and the adult author ”.
It is therefore not enough to note that the child victim and the perpetrator have a great difference in age and that the second has authority over the first, for it to be possible to deduce that the qualification of sexual attack ( implied consent) is excluded. Everything remains a question of appreciation of justice.