France – Marital Rape – French Law – Desire, Need & Consent

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http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B82YG-4WD116V-4&_user=10&_coverDate=05%2F28%2F2009&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=219e77cf941af99adb744ae2204c1c13

MARITAL RAPE ACCORDING TO FRENCH
LAW: DESIRE, NEED AND CONSENT

P.
Bensussan MD

Objective

This article provides a critical analysis of a concept which will sound
rather obvious: sexual relations are only acceptable when both parties consent
to them; any form of forced sex is henceforth considered as rape, even when it
takes place between two spouses. The author looks at how difficult it can be
for the judge and the psychiatric expert to evaluate the plaintiff’s consent or
refusal, and – even more difficult – the defendant’s
perception of her consent or refusal. The subtleties of flirting and foreplay,
the potential violence involved in sex, inexperience on the part of the lovers
are today some of the frightening pitfalls that can lead to extremely severe
sentences when charges are pressed. Indeed since a change in the law in France
in 2006, spousal rape is now considered an aggravating circumstance and as such
is more severely punished than the rape of a stranger.

Method

Based on 15 years experience of legal psychiatry and a review of more
than 200 cases of rape, the author, a qualified psychiatrist and expert
approved by the French Court of Appeal, qualified in clinical sexology,
specialising in sexual delinquency, shares with us some of the results of his
experience.

Discussion

An increasing percentage of cases of rape – currently 60% of the total –
involve partners or ex-partners. This does not mean that there is more violence
within couples today than in the past; but rather that the threshold of
perception of violence has considerably dropped, and shows us that we should
reconsider the relevance of currently used legal terms and concepts.

Result

The author, a psychiatrist and sexologist, approved as an expert by the
French Court of Appeal, specializing in sexual delinquency, explains why he
believes that “consent”, the evaluation of which is presented to the court by
the psychiatric expert, is not a legally meaningful criterion since it cannot
be proven and can easily be denied. He suggests that our legal terminology
should be expanded so as to avoid lumping together under the same name “rape”
very different situations ranging from an aggression in the street of a total
stranger to sex forced by an egocentric spouse on a partner who no longer
desires it.