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Child Rape: An Open Letter to the French Courts

December 10, 2017

Re: Urgent Change in French Law Defining Rape

We write to express our deep concern, abhorrence and outrage following the outcome of two cases in France where perpetrators raped two girls aged 13 and 11 respectively. In both cases the perpetrators were not convicted. The galling revelations and recent warped legal verdicts effectively sanction sexual contact with a child and highlight the lax attitude by the government that enables predatory sexual behaviour to carry on.

An open letter:

Twice, French courts have failed to prosecute men for rape after they had sex with 11-year-old girls because authorities could not prove coercion. In 2009, a 30-year-old man from the Seine-et-Marne district of Paris who lured an 11-year-old Congolese girl into sexual intercourse was acquitted after prosecutors failed to prove that the sex was non-consensual. Unfortunately, the young girl also became pregnant and subsequently gave birth to a baby that was placed in foster care due to complications and fear of being outcast by their community.

Again in September 2017 an 11-year-old girl was also lured by a 28-year-old man to his flat in the north of Paris in order to teach her how to kiss. Allegedly she performed oral sex in the hallway. In the flat he had sexual intercourse repeatedly with the child.  Afterwards, he told her not to talk to anybody about it, kissed her on the forehead and asked to see her again.  Despite her mother’s claims that her 11-year-old child was unable to defend herself and surmise what was going on, the rape charge was dropped. Instead the man was charged with sexual assault of a minor below the age of 15.

In both cases, there was an erroneous and shocking inference from the court that there was sexual relationship rather than paedophilic grooming. Paedophilic grooming occurs when the perpetuator targets vulnerable children, building a communication to gain the child’s trust to exploit them in many ways but mainly sexually. The paedophile, after choosing a target, sometimes offers the child attention, sweets, alcohol, drugs etc.

Equally troubling is the dubious and almost always vexing issue of full and free consent, and whether or not the young girl knew or has received all the facts and information about sexual intercourse.  It is difficult to ascertain whether an eleven-year-old girl is truly consenting to sexual intercourse when she is in a man’s room?  Can she actually ‘consent’ at all? What is the age in France for other sorts of consent, e.g. criminal, financial or legal responsibility?  Equally it is impossible for a young girl to refuse when he is on top of her. These young 11-year-old children were targeted, groomed, lured, did not have full knowledge about sexual intercourse and therefore could not and did not give full and free consent.  It is wrong and unrealistic to expect an 11-year-old girl or boy to stop a 30-year-old man from penetrating them after being lured to a secluded place?  It is the obligation and responsibility of the State to have effective Legislation to criminalise and punish individuals who lure and penetrate children – because that is Child Rape.

Both cases have the common core issue of no consent. Both girls were of African origin. At minimum this court decision shows little regard for vulnerable girls who may come from impoverished backgrounds and girls from migrant families.

Under the current French law, only sexual acts committed with the use of “violence, coercion, threat or surprise” are considered to be rape, regardless of the victim’s age. Penalties are tougher if the victim is under the age of 15, as the young age is an aggravating factor, but there is no minimum age of consent for sexual acts. Thus the charge of rape in France is only satisfied when there is sexual penetration and 1. Violence 2. Coercion, 3. Threats and or 4. Surprise.  If there is no violence and the child is below 15 years of age, only a sexual assault – not rape — is deemed to have taken place, punishable with a fine and sentencing to a mere 6 months in prison. The very fact of a grown man having sex with a child is inherently violent.

Even under these insurmountable if not outright impossible conditions required to satisfy the French definition of rape, this verdict suggests that if a man lures a child back to his flat, and later warns the child not tell anyone, there has not been coercion. Was it that inherently complicated for the court to find credible that the 11-year-old was unable to defend herself and was unable to surmise what was going on?  This essentially means that Paedophiles who groom children and vulnerable people will have a legitimate defence as the government has implicitly sanctioned paedophilia.

We are dismay at the eyebrow-raising, ludicrous suggestion by Justice Minister Nicole Belloubet that the age for consent be set somewhere between 13 and 15. This erroneous approach, which is not victim centred, is fundamentally wrong. The approach should be one of protection and to make the law robust by defining rape and including a specific age that automatically translates as a child is deemed unable to give consent. Belloubet’s suggestion also blatantly reneges from France’s international obligations and protection of children from the risk of exploitation.

Equally, we are dismayed at the distorted logic that France (as a signatory to the Minimum Age Convention 1973 that prevents children under 14 from being economically engaged and working) does not have effective legislation protecting children from sexual grooming and exploitation. Nor does France have effective punishment for sexual predators or laws robust enough to act as a deterrent. Rather than the Court being a beacon of justice and   protecting girls in France, we would argue these verdicts have inadvertently encouraged the rape and molestation of children by producing a legitimate defence.   Ironically this very same government has recently passed Legislation protecting women from harassment in public, does not ensure protection of children with clear robust legislation on when a child is not able to give consent. To most people this makes no sense at all. The French government and policy makers must galvanise propitiously against rape of children, rather than tacitly ignoring it. The priorities are protection and deterrents.

The fact that criminal courts in France are very congested often means there are no preliminary hearings for serious charges. Meaning rape, including child rape, is often re-categorised into a sexual assault which is a much less serious offence. This less serious charge is heard in a lower court and can only be punished by five years of imprisonment, as opposed to fifteen years for rape.

If steps are not taken the girl child in France may be seen as “Fair Game” ripe for exploitation and sexual use. Thus, the young girl, briefly befriended, now penetrated, can perhaps be filmed for later use in pornographic material and passed on. This will be the legacy of France’s erroneous legal stance.

The sexual abuse of all children is repugnant; the repercussions are harrowing and dire ranging from HIV and other sexually transmitted infections to psychological trauma that often stays with children for life.  The rape of vulnerable little girls impacts them disproportionately and with more intensity with the stark additional brunt of pregnancies, as with one of the girls in these tragic cases.  The burden of her unwanted pregnancy with all the added physical and psychological issues attached to it cannot be underestimated.

The World Health Organization (WHO) defines childhood as experienced when a person is under 15 years of age. Age acts as a barrier in which sexual intercourse is considered unacceptable. It is important for a young girl to have a degree of emotional and intellectual maturity. Sexual intercourse by a stranger signals the tragic end of childhood and the abrupt entry into adulthood. Tragically for some, they are thrust into the full burden of domestic responsibility and motherhood. Rather than allowing victims to experience the normal milestones in child and adolescent development, child rape brutally distorts and in some cases eradicates normal childhood.  This act of forced sexual intercourse destroys childhood. These facts give an impression of how heart-rending it is when a child, who is physically immature, is introduced into the world of sexual intercourse but cannot give meaningful consent. One of the girls who was raped later became pregnant.

The permissive rape of a child is a setback to the fulfilment and maintenance of human rights, development, equality and the health and education of children. The rape of a child unleashes a cascade of recognised Human Rights violations as set forth in a multiplicity of international agreements. The Universal Declaration of Human Rights (UDHR) promotes the dignity and worth of the human being and equal rights of men and women.  It specifies gender as an impermissible ground of differentiation and provides an equal protection clause. The rape of a child is a Human Rights violation as held by the 1948 UDHR and contradicts the principles enshrined in the UDHR and numerous international treaties. It has been addressed in several international and regional treaties and in many human rights forums that have emphasis this important principal.   It has been frequently addressed both by the Committee on the Rights of the Child (CRC) and CEDAW.   Equally rape has been identified by the Pan-African Forum against the Sexual Exploitation of Children as a type of commercial sexual exploitation of children.  France is a signatory to all the aforementioned treaties.

This clear failure by the French government not to have robust legislation, specifically to protect children from sexual exploitation, is a breach of their obligations under the Istanbul Convention, U.N. Convention on the Rights of the Child 1989, Various European Conventions and Directives (including Convention on the Exercise of Children’s Rights 1996) and the Vienna Convention under the law of treaties compelling signatories to comply with their obligations.  France’s abstract rubber stamp perfunctory signature to numerous treaties has not translated into concrete backing. Instead, the government has chosen to remain impervious against a recognised and obvious landscape that grown men do not have sex with little girls!  The failure by the French government to comply with their obligations and enact legislation that protects female children, means that they are assisting child predators. The Vienna Convention on the Law of Treaties states categorically that a state that ratifies an international treaty” establishes on the international plane its consent to be bound by a treaty.  Rape of a child is a serious human rights crisis.

More importantly this demonstrates lack of uniformity in Europe and the need for a uniform minimum legal age of consent. A criminal that preys on children cannot be a paedophile in one state and a sexual partner in another. There cannot be legitimacy of paedophilia in any part of the EU or anywhere in the World.  We confirm and stand shoulder to shoulder by the conclusions stated in The Terminology of Guidelines for the Protection of Children from Sexual Exploitation 2016. To avoid any ambiguity:  the age of consent and definition of child rape in France must be made clear; across Europe the laws must be made uniform and the definition of statutory rape against children must be properly defined and ensure the protection of the girl child.

We applaud the UK Professionals against GBV Organisation who has been staunchly vocal about this lack of universal definition of child rape and need for uniformity across Europe. Equally we applaud President Emmanuel Macron’s recent announcement of an initiative to address violence and harassment against women in France, with plans aimed at erasing the sense of shame that breeds silence amongst victims and changing what he said is France’s sexist culture. Amongst the changes he is proposing is to rush legal complaints through the system, and the statute of limitations for suspected sexual crimes against minors would be moved to 30 years from 20 currently as part of a bill to be presented in 2018.  More importantly in lieu of this glaring troubling finding from the court that there was no coercion, France is now considering something long ago adopted in other Western nations: setting a minimum age of consent for having sex at 15. We also share the sentiments expressed by Catherine Brault, a lawyer who defends child victims in Paris, that there is an irrefutable presumption that a minor cannot agree to engage in sex with an adult. In our view there needs to be strict liability for an offence of penile penetration of a child under the age of 16 whether or not the victim gave consent and irrespective of the perpetrator’s belief regarding the victim’s age.

As mothers, lawyers, human and child rights advocates and most importantly as human beings, we are collectively stunned at France’s unacceptable stance. This is heart breaking.There is something inherently wrong when the law fails to protect young children from rape. It boggles the mind.

These girls were not sexually assaulted. They were raped.

Yours sincerely

Kameel Ahmady

Alex Amicarelli

Hilary Burrage

Bogaletch Gebre

Niki Konstantinidou

Lorraine Koonce-Farahmand*

Jeanie Kortum

Tobe Levin

Isabella Micali Drossos

Jennifer Obaseki*

Cheryl Pegues

Katha Pollitt

Charlotte Proudman

Neelam Sarkaria

Cherrelle Salmon

[*lead authors of this letter]

 

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This NoFGM website is owned and edited by Hilary Burrage, a consultant on female genital mutilation (FGM).  Hilary’s introduction and general information about FGM can be found here, or for a more detailed, referenced discussion of FGM, you may like also to read her post Female Genital Mutilation: An Introduction To The Issues, And Suggested Reading and see her two books on this subject:

Eradicating Female Genital Mutilation: A UK Perspective (Hilary Burrage, Ashgate / Routledge 2015).   Contents and reviews  here.
FEMALE MUTILATION: The truth behind the horrifying global practice of female genital mutilation  (Hilary Burrage, New Holland Publishers 2016).   Contents and reviews  here.

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