Following the case of Gisele Pelicot — now 72 years old, sedated and raped by her husband and at least 51 other men from 2011 to 2020 — France has approved the law that defines rape as the absence of consentregardless of the presence of violence. Precisely the shock of the Pelicot affair, the international resonance of the trial and the intervention of the feminist movements led to a legislative change that modifies the French criminal code. Article 222-22 which defines the crime of sexual violence and provides for its penalties, will not be rewritten, but integrated. The new text, in fact, defines any non-consensual act as sexual assaultthus introducing a historical turning point: from today it is the consent of the people involved that is decisive in distinguishing a sexual act from violence.
Although the absence of a “no” is not automatically a “yes”, it was necessary to make this concept applicable at a legislative level, placing the offended party at the centre, as numerous European countries have already done. In ItalyInstead, the concept of consensus has not yet been introduced in the article of the penal code relating to rape, despite the fact that our country, already in 2013, ratified the Istanbul Convention, which provides for the prevention and fight against violence against women in the sexual and domestic sphere, a document in which, in article 36, it is clarified that without consent it is called rape.
The details of the new French law: the introduction of the concept of consent
The new text of the French law defines rape as “any non-consensual sexual act” and integrates the four conditions present to date to define rape, namely “violence, coercion, threat or surprise”. The consent it must be “free and informed, specific, preventive and revocable” and cannot be simply deduced from silence understood as consent or from a lack of reaction.
The focus, therefore, thanks to the request carried out by deputies Marie-Charlotte Grain (Ecologists) and Véronique Riotton (Renaissance), is now on consensus as a determining factor. The limit of the law, up to now – in France as it still is in Italy – was that it excluded from the concept of rape all the violence that occurs in apparently “safe” contexts, such as the family or the circle of loved ones and friends, and all those cases where there is no violence, no coercion, no threat or surprise, but often a physical or psychological abuse that prevents, for various reasons, from reacting.
The case of Gisele Pelicot was crucial because, although the abuse was clearly rape and no doubts were raised about this, the episodes did not fall into any of the four categories provided. It therefore became clear that consent is the discriminant around which the act of rape is defined, as happens when the victim is in a state of “freezing” — literally, “freezing” — e out of fear or shock he doesn’t react.
The evolution of thinking around consensus and the situation in Europe
To date, 16 member states of the European Union have already introduced the concept of consent into the definition of rape condemned by law: Belgium, Croatia, Cyprus, Czech Republic, Denmark, Finland, Germany, Greece, Ireland, Luxembourg, Malta, the Netherlands, Poland, Slovenia, Spain and Sweden. Notably, the law requires explicit consent in Spain and Denmark, where “only yes is yes.”
Despite these innovations at the legislative level leading to a change that protects and defends the victims, the data still speaks of a very serious situation: the survey on gender violence conducted by Eurostat shows alarming levels of both declared and unreported violence, as well as a very high figure – 1 in 5 women – who speaks of violence in domestic and family contexts. From this sad evidence it therefore appears even more urgent to focus attention on consent, regardless of the context and the presence or absence of violence.
What the law says in Italy: the concept of “sexual consent” does not exist
In Italy, article 609 bis of the penal code defines that:
Anyone who, with violence or threats or through abuse of authority, forces someone to perform or undergo sexual acts is punished with imprisonment (from six to twelve years). Anyone who induces someone to perform or undergo sexual acts is subject to the same penalty: 1) abusing the conditions of physical or psychological inferiority of the offended person at the time of the crime 2) misleading the offended person by having the culprit replaced by another person.
The concept of consent is therefore not explicit: our penal code identifies rape as an exercise of force or abuse, but it must be kept in mind that, since 2013, Italy has signed the Council of Europe Convention on preventing and combating violence against women and domestic violence (also called the “Istanbul Convention”), which in Article 36 clearly requires putting the will of the offended person in the foreground:
The Parties shall adopt legislative or other measures necessary to criminally prosecute those responsible for the following intentional behaviors: a) non-consensual sexual act with vaginal, anal or oral penetration performed on another person with any part of the body or with an object; b) other sexual acts performed on a person without his consent; c) forcing another person to perform non-consensual sexual acts with a third party. 2. Consent must be given voluntarily, as a free manifestation of the person’s will, and must be assessed taking into account the situation and context.
