"Stealthing": when criminal law freezes on the doorstep of intimacy...
In the age of all-digital technology and the considerable development of social networks, legal security, which until now has been the focus of all our attention, now finds itself confronted by the overflowing and galloping inventiveness of the pernicious users of these new technologies, who in just three clicks overtake the responsiveness of our legislative system and unprotectedly absorb an impulsive youth, ideal prey for the many predators who clutter the Web.
Cécile Lefrançois and Clémence Vialatte, University of Montpellier
Faced with this frantic race for buzz, and in the absence of legislation, the criminal judge often finds himself confined to defending the old bastions of our law, such as the sacrosanct principle of consent, the absence of which is so difficult for the victim to prove.
What's more, French criminal law is strictly governed by major general principles, including the principle of criminal legality. This requires that any act considered reprehensible must first be precisely defined by law. strictly speaking to be penalized.
Pornographic revenge, belatedly punished
So it wasn't until the Law for a Digital Republic of October 7, 2016 that revenge porn was finally punished. This consists, for a spurned lover, in disseminating, without the express consent of the interested party, an intimate image of a sexual nature of his former partner taken or acquired in a consensual manner during the time of the relationship, with the sole aim of humiliating or even sullying him.
However, the legislator can be criticized for failing to clearly define the highly subjective notion of "sexual nature", which will certainly oblige the French Constitutional Council to rule on the issue in the context of a question prioritaire de constitutionnalité.
Until now, judges have refused to punish such acts, arguably taking the view that the consent given at the time the photograph was taken implicitly or even automatically extended to the right to disseminate it, even when the abuse of consent appeared obvious.
The limits of French law in the face of the practice of stealthing
So where will he stand when the first case of "stealthing" - the practice of removing a condom without the partner's consent during consensual sex - comes before him? Since consent to sexual intercourse is conditional on the use of protection, its voluntary removal constitutes a genuine abuse that should be punished. Yet here again, criminal law comes up against its own limits.
While the Lausanne Criminal Court qualified "stealthing" as rape and sentenced a 47-year-old Frenchman to 12 months' suspended imprisonment under French law, in the name of the principle of strict interpretation of criminal law, this qualification would be rejected. Rape, which consists in sexually penetrating another person by violence, threat, constraint or surprise, necessarily implies an absence of consent to the sexual act itself - which is not the case here.
Judges could certainly consider "stealthing" as an "act or behavior likely to cause physical or psychological harm to the person of the latter, characterized by emotional shock or psychological disturbance" (Chambre criminelle, September 2, 2005, no. 04-87046), and punish the perpetrator for deliberate violence.
But is it really the deception resulting from the non-consensual removal of the condom during a relationship of trust that judges consider to be the cause of the emotional shock, or is it the fear inherent in the risks incurred during unprotected sexual relations, such as unwanted pregnancy or the transmission of sexually transmitted infections?
Whatever the cause, it will be up to the judges to decide casuistically, even subjectively, on the reality of this emotional shock, by virtue of their sovereign power of appreciation.
The obstacle of proof
Should we then again hope that the legislator will intervene to create a new specific offence that would provide an extremely precise legal definition of this singular risk behavior, which can only manifest itself in a single way, under a single behavior in a given setting?
However, as the European Court of Human Rights has repeatedly stressed, excessive precision is not desirable, as it would be tantamount to enacting a standard that would only apply to a given social phenomenon - thus perpetuating the eternal "legislative bulimia" whose ineffectiveness has been demonstrated more than once.
If either of these solutions seems theoretically viable, the practical reality raises a major problem that is often overlooked, namely that of proof. It is very difficult for a person to prove not only that he or she consented to the sexual act on the strict condition that it be protected, but also that his or her partner removed the protection without his or her knowledge.
Awareness-raising, information and education
This difficulty of proof, common to all intimate events, intrinsically reveals the limitations of criminal law, which has difficulty in grasping abuse. - We're also concerned with finding the right balance between individual freedom and the need to repress certain forms of behavior that can be described as deviant.
Faced with the nauseating machismo of some revealed through various forums and social networks and in the face of a somewhat conservative society, we quickly end up either discrediting the victim for his or her naivety or even flippancy, or casting doubt on the sincerity of his or her speech. Awareness-raising, information and education are the only useful weapons for eradicating this scourge.
To understand this, we had to wait for people to speak out, with a certain virulence, no doubt commensurate with the years of suffering without being believed...
Cécile Lefrançois and Clémence VialatteDoctoral students, lecturers at the Faculty of Law, University of Montpellier
Visit original version of this article was published on The Conversation.