Rape of a child: “our law protects the aggressors”

A 28-year-old man appears in court for forcing sex on an 11-year-old. Curiously, the qualification of rape was not retained. The man is being pursued by the Pontoise public prosecutor’s office for “sexual assault” on a girl. The magistrates considered that the victim, not having expressed any opposition, was therefore consenting.

In France, no legal text stipulates that below a certain age, a child cannot be considered as sexually consenting. An absurdity, according to Dr Muriel Salmona, psychiatrist and president of the association Mémoire Traumatique et Victimologie.

Can an 11 year old be sexually consenting?

Dr Muriel Salmona: Of course not, it is an aberration to say that. An 11-year-old child does not have the psychoaffective and sexual maturity, nor the emotional and intellectual tools, allowing to develop a capacity to have free and informed consent, to decide in any case. This is particularly why at this age, he cannot undertake a certain number of steps on his own, such as surgery. On the other hand, would he be mature enough to accept sex, but also to protect himself from sexually transmitted infections and unwanted pregnancies?

Be serious. A child may be flattered that an adult gives them a compliment, but what they are looking for is nothing but recognition, not sex. The sexual act imposed on a child has a very heavy impact on his physical and psychological integrity, on his dignity. Being taken as a sexual object generates psychotrauma, on which there is absolute consensus.
We have all the tools to tackle this type of business. But now, there is this French specificity according to which the consent of the child is left to the appreciation of the specialized courts. It is very shocking.

Why has French law not introduced a presumption of non-consent for children?

Dr Muriel Salmona: The 1980 law is based on the notion that everyone is presumed to consent to a sexual act. It is up to the victim to prove the non-consent, with four factors: violence, coercion, threat or surprise. Most countries have introduced a presumption of non-consent for children, setting various age limits (12 in Switzerland, 16 in Sweden). But not France – and the law was confirmed by the Constitutional Council in 2015. Case law has retained the age of five years, below which one cannot be considered as sexually consenting.

This law protects the aggressors, while the international conventions confirm the right of the child to be protected. Why would it be up to children to protect themselves from predators? I’ve been warning about the need for a presumption of non-consent for a long time. The legal texts set sexual maturity at 15 years. We could retain this limit.

How to understand the qualification of the act by the prosecution?

Dr Muriel Salmona: This is incomprehensible, especially since the moral constraint was easily demonstrable, since it can be deduced from the authority and from the age difference. In this case, we have an 11-year-old child and a 28-year-old adult … But there was no education. The elements usually examined – astonishment, dissociation… – were not taken into account. We only heard that the victim was “more than his age”, and that the predator looked younger.

The justice system already tends to dequalify rape as sexual assault, in order to avoid a long and poorly paid procedure before the Assize Court. It should be noted that only 10% of victims file a complaint after a rape. Of this set of complaints, 70% are dismissed, 15% are disqualified. In the end, we end up with 1% of convictions of the aggressors.

Isn’t this a tendency to regard children as adults responsible for their actions?

Dr Muriel Salmona: Maybe, because children are sponges. But we can sexualize them as much as we want, impose our adult vision on them, they remain children. A child does not want a sexual act. People don’t have the courage to imagine an 11-year-old girl with an adult penis in her mouth. They don’t want to imagine what a little girl’s vagina is, penetrated by that of a 28-year-old adult. There is a representation deficit. Yet, said like that, is it clear enough?

All attention is fixed on the consent of this little girl. We do not put the spotlight on the 28-year-old adult, father of two children. He knew exactly what he was doing. It is neither more nor less of pedocriminality.