“Stealthing”: when criminal law stops at the doorstep of intimacy...
In this digital age, with the huge growth of social media, legal security, which used to be a top priority, is now up against the crazy inventiveness of people who misuse these new technologies. With just a few clicks, they can get around our laws and take advantage of young people who are impulsive and have no protection, making them easy targets for the many predators lurking online.
Cecile Lefrançois and Clemency Vialatte, University of Montpellier
Faced with this frantic race for buzz, and in the absence of legislation, criminal judges often find themselves confined to defending the old bastions of our law, such as the sacrosanct concept of consent, the absence of which is so difficult for victims to prove.
Furthermore, French criminal law is strictly governed by major general principles, including the principle of criminal legality. This principle requires that any act considered punishable must be precisely defined by law in advance. strictly speaking to be criminally punished.
Pornographic revenge, punished belatedly
It was not until the Digital Republic Act of October 7, 2016, that revenge porn was finally made a punishable offense. This consists of a rejected lover disseminating, without the express consent of the person concerned, an intimate image of a sexual nature of their former partner, taken or acquired with consent during the relationship, for the sole purpose of humiliating or even defaming them.
However, the legislature can be criticized for failing to clearly define the highly subjective concept of "sexual nature, " which will certainly require the Constitutional Council to rule on the issue in the context of a priority constitutionality question.
Until now, judges have refused to punish such acts, arguing, somewhat controversially, that consent given at the time the photograph was taken implicitly or even automatically extended to the right to distribute it, even when the abuse of consent was obvious.
The limits of French law in relation to the practice of "stealthing"
What will his position be when the first case of "stealthing"— the practice of removing a condom without the consent of one's partner during consensual sex —comes before him? Since consent to sexual intercourse is conditional on the use of protection, its deliberate removal constitutes a genuine abuse that should be punished. And yet, criminal law once again comes up against its own limitations.
While the Lausanne Criminal Court has classified "stealthing" as rape and sentenced a 47-year-old French man to 12 months' suspended imprisonment under French law, in accordance with the principle of strict interpretation of criminal law, this classification would be rejected. Indeed, rape, which consists of sexually penetrating another person through violence, threat, coercion, or surprise, necessarily implies a lack of consent to the sexual act itself—which is not the case here.
The judges could certainly consider "stealthing" as an "act or behavior likely to cause physical or psychological harm to the person concerned, characterized by emotional shock or psychological disturbance" (Criminal Chamber, September 2, 2005, No. 04-87046) and punish the perpetrator for intentional violence.
But is it really the deception resulting from the non-consensual removal of the condom during a relationship of trust that judges would consider to be the cause of the emotional shock, or is it the fear inherent in the risks involved in unprotected sex, such as unwanted pregnancy or the transmission of sexually transmitted infections?
Whatever the cause, it will be up to the judges to decide on a case-by-case basis, or even subjectively, on the reality of this emotional shock, by virtue of their sovereign power of discretion.
The obstacle of proof
Should we therefore hope that the legislator will intervene to create a new specific offense that would provide an extremely precise legal definition of this particular risky behavior, which can only manifest itself in one way, through a single type of behavior in a given context?
However, as the European Court of Human Rights has repeatedly pointed out, excessive precision does not seem desirable, as it would amount to enacting a standard that would only apply to a given social phenomenon—which would perpetuate the eternal "legislative gluttony" whose ineffectiveness has been demonstrated more than once.
While either of these solutions may seem theoretically viable, the practical reality raises a major issue that is often overlooked, namely that of proof. It appears very difficult for a person to prove not only that they consented to the sexual act on the strict condition that it would be protected, but also that their partner removed the protection without their knowledge.
Awareness raising, information, and education
This evidentiary difficulty, common to all matters relating to private life, intrinsically reveals the limitations of criminal law, which struggles to grasp abuse. – absence or excess – of consent in sexual relations (such as sadomasochism or consensual sex with minors) and to strike the right balance between individual freedom and the need to repress certain behaviors that could be considered deviant.
Faced with the nauseating machismo of some revealing themselves through various forums or social networks And in a somewhat conservative society, we quickly end up either discrediting the victim for their naivety or even their recklessness, or questioning the sincerity of their story. Awareness-raising, information, and education are the only effective weapons for eradicating this scourge.
To understand this, we had to wait until people felt free to speak out, with a certain virulence, no doubt commensurate with the years they had endured without being believed...
Cecile Lefrançois and Clémence VialatteDoctoral students, teaching assistants at the law school, University of Montpellier
The original version of this article was published on The Conversation.