the essential
While the Mazan rape trial is making headlines, Michel Huyette, honorary magistrate installed at the Cahors court since October, is campaigning for a change in the definition of rape which, for the moment, focuses on the brutality carried out. However, these are often absent from the numerous cases that judges find themselves handling.
You were president of the Haute-Garonne Assize Court for 15 years. Based on this experience, you have drawn up a finding that disagrees with the definition of rape in the penal code. For what ?
First, I can no longer count the number of defendants who say: “I didn't rape her, because I didn't hit her.” Unfortunately, the idea of rape is associated with brutality. Secondly, and this concerns almost all rape cases, there is very little brutality. I have heard countless women in my career who all say the same thing: it is, at the time of the attack, the fear and the fear of very serious violence that paralyzes them, which means that they do not react. do not oppose. This explains why medical reports generally mention one day of ITT at most. I have the impression, without exaggerating, of having always had the same affair, with variations of course.
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You mention here the state of astonishment of the victims. Why did justice take time to take it into account?
As early as the 15th century, when rape began to enter the courts, the present idea was: “It is not possible for a woman not to defend herself fiercely.” So, if she doesn't fight, it's because she wanted to. It’s an idea that comes from afar.
Even today, the very definition of rape clearly shows that astonishment is secondary. There are four words to define the conditions of rape, and their order is interesting: “The act of forcing a person by violence, threat or surprise to engage in sexual activities with a third party” (Article 222-22 -2 of the penal code). Violence comes first. The first characterization of rape is violence. It's not trivial. The “surprise” was basically the mentally ill person or the small child who is not able to understand what is happening.
The first three words are associated with brutality. There is a gap between the definition of rape, which takes us towards a reality that I have not observed, a reality almost systematically devoid of violence. This definition also brings to mind the idea that if the person allows themselves to be done, it is because they consent.
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Changing the definition would therefore be to change mentalities?
Yes. We know that there are plenty of women who, in this type of case, do not file a complaint because they let it happen. They think: “It’s my fault, I didn’t defend myself.” There were dismissals because, in the reports, the victim said that she let it happen and that there were no traces of violence. I think we're still there. However, a woman who is afraid is a woman who is not consenting.
If we change the definition of rape and no longer focus on brutality but on consent, it will change nothing for the courts. Except that the debate will shift slightly. We will no longer only talk about the violence, but rather about the attitude of the victim at the time of the sexual relationship. We do not need to focus on the violence committed. Instead, let's see what shows that she consented or not.
This is the question posed by the Mazan rape trial.
There is a woman sleeping. By definition, she cannot give consent. If we rely on consent it is: can the man who has a relationship with a woman who is sleeping and who cannot tell her that she consents? Did he ensure her consent? Obviously not. As for those who say that her husband assured them of his consent, there is no consent by proxy.
