By Paul Gregoire and Ugur Nedim
A number of recent ‘age of consent cases’ in France have triggered public outrage and drawn international criticism of the somewhat murky child sex laws the nation has in place.
In response, the Macron government is currently drafting a bill aimed at addressing the issue, along with sexual harassment and aggression in general.
Under French law, it is illegal to have sex with a child under the age of 15. However, there’s no law that designates the minimum age under which a minor cannot agree to have sex. So at law, there’s blanket prohibition against having sexual intercourse with a child, which is sometimes referred to as ‘statutory rape’.
That said, the highest court in the country has ruled that children aged five years and under cannot consent to sex.
A question of consent
If an adult is caught having sexual relations with an individual under 15 years of age, they can often appear in court on a charge of sexually abusing a minor, which is an offence that carries a maximum penalty of 5 years imprisonment, and/or a fine of €87,000.
The laws in France provide that for rape to have occurred, it must be proven that sexual penetration was committed “by violence, coercion, threat or surprise.” The maximum penalty for raping a child under 15 years old is 20 years in prison.
The situation has led to controversy over cases whereby lawyers argued to and fro about whether 11-year-old girls willingly and knowingly agreed to have sex with men decades older.
Not necessarily a sexual predator
One such case was a trial in Pontoise, a northwestern suburb of Paris which was vacated last week.
In that case, a 29-year-old man appeared before the court charged with sexually abusing a minor, after being accused of having had sexual intercourse with an 11-year-old girl.
The man’s defence lawyers submitted that the pair met in a park, and that the girl voluntarily followed the man home and consented to sexual intercourse. The defence further argued that the man was under the impression the 11-year-old was 16 at the time.
The girl’s mother filed a rape complaint with the Montmagny police. However, prosecutors felt there was no evidence to establish the use of force or coercion. So, in September last year, they pressed sexual abuse charges instead of rape.
Criminal defence lawyer Marc Goudarzian submitted in court that the girl was “11 years and 10 months old, so nearly 12.” To the outrage of the public, he told the court that this “changes the story” because it means “she is not a child.” His colleague Sandrine Parise-Heideiger submitted that the court was “not dealing with a sexual predator on a poor little faultless goose.”
However, on February 13, the presiding judge ruled that prosecutors had gotten the charge wrong and ordered that the case be sent back for a more thorough investigation.
He vacated and adjourned the trial for that purpose.
Non-consensual cannot be proven
Another case that shined a light on the issue took place in November last year. A 30-year-old man appeared before court accused of raping an 11-year-old girl in a park in 2009. He was found not guilty by a jury as the prosecution could not prove the minor had not consented.
The encounter in the park led to the young girl falling pregnant. Subsequently, the baby was placed in foster care, as the family did not want to be condemned within their community. The family finally decided to make a complaint years later, only for the case to fail.
Legislating for change
Following the charges of rape being dropped against the 29-year-old man last September, French equality minister Marlène Schiappa announced the government was proposing to draft legislation to crack down on sexual aggression, especially that which is aimed towards children.
On October 16 last year, Ms Schiappa said the new bill will set down a clear age of consent.
The proposed minimum age has not been finalised as yet, but it’s believed the cut off will be between 13 and 15 years old. And this will include a provision outlining that intercourse with a child under the specified age is a coercive act.
The announcement of the new legislation coincided with a Twitter campaign led by French radio journalist Sandra Muller, which uses the #balancetonporc tag. It translates to “squeal on your pig” and calls upon women to publicly shame their attackers, quite like the #MeToo campaign in the US.
The bill, which is set to be debated in the French parliament this year, might also include a new offence of street harassment, as well as a provision to lengthen the statute of limitations on child sexual assault.
Under the new provision, the time that victims of childhood sexual assault will have to report a crime after they reach the age of 18 would be broadened from 20 to 30 years.
This move was triggered by an incident involving Flavie Flament. She’s a French broadcaster, who alleged she’d been raped by British photographer David Hamilton 30 years ago, when she was only 13-years-old.
It had taken Ms Flament three decades to come to terms with the attack, and when she was ready to press charges, she was unable to do so.
Meanwhile, Mr Hamilton was found dead in Paris after taking his own life, following three other women going public and making similar allegations against him.
Age of consent in Australia
In NSW, there’s no limitation to the amount of time an individual can take to report a case of child sexual assault.
All jurisdictions in Australian have an age of consent. Most state and territory laws provide that 16 is the age under which an individual cannot give consent. The age of consent in NSW is 16, or 18 where a relationship of special care exists. The age of consent is 17 in South Australia and Tasmania.
In this country, whether a sexual encounter between an adult and a minor appeared consensual is irrelevant in establishing liability, as children below the age of consent are considered by the law not to have the decision-making capacity to willingly agree to have sex.
So, under domestic laws, an adult who’s proven to have had sexual intercourse with a minor will be guilty of child sexual assault, and debate about whether the minor consented will not come into courtroom proceedings when guilt or innocence is being decided.
When the judiciary have different opinions
However, laws don’t guarantee that judge’s attitudes are in line with them.
In August 2016, two Victorian County Court judges were accused of following their own moral compasses, due to comments they made when sentencing adult men in sexual assault cases involving minors.
The oldest serving County Court judge described a 13-year-old girl as giving “ostensible consent” to a man 40 years her senior. Judge Michael McInerney then decided to remark that the girl, who was 17 years old at the time of her court appearance, had grown into a “somewhat striking young woman.”
While Judge Christopher Ryan described a 14-year-old sexual assault victim as “nubile.” And he went onto remark that former Children’s Court security guard Franco Abad, who was 30 when the offence occurred, was “not made of steel” when the “worldly” girl climbed into his bed.