After Théo, Alexandre: why so much reluctance to hold back rape?

Can you really impale yourself on a baton by accident? Vlad IV (known as Dracula) or Gilles de Rais (known as Bluebeard), would say “YES! »And any lawyer will answer you that in law… Anything is possible.

Of course, as in all sensitive cases, it is necessary to take into account the judicial time which is not comparable to media time, to the secrecy of the investigation (ouch, too late!) To the presumption of innocence, to the difficulties of maintaining order in the suburbs ...

But obviously these accidents are not that rare.

A similar case, which Alexandre died of shame preferred to keep silent, has just been revealed (it will be retried on appeal, this Monday, in Bobigny). In his case, the facts were qualified as rape before being reclassified as violence. The author (a municipal police officer and his baton) was sentenced to 6 months suspended prison sentence.

And there, we say to ourselves that there are many accidents with the baton ... Hence the interest in taking a closer look at the qualification problems raised by the excessive use of this blunt object.

In criminal matters, the qualification is what is most important "Give me the facts I will give you the right". The qualification of the facts is what determines the applicable penal text and the penalty incurred.

The facts: an identity check that degenerates with a disproportionate use of force (on this point, everyone agrees). Theo, whose bottom of the tracksuit has "slipped", is held by 3 police officers, with a fourth who to control him held his baton pointed forward. This resulted in 60 days of ITT and an anal fissure of more than 10 centimeters by the intromission of a telescopic baton.

At the beginning, the prosecution retained the qualification of rape. Then it became an accident, since the policeman was aiming at the back. And so ... requalification of the facts of the prosecution in willful violence aggravated. A requalification widely publicized and based on the report of the IGPN "the police of the police". We then go from a crime for which we incur up to 15 years of criminal imprisonment (20 since the act is committed by a depositary of public authority) to an offense punishable by at least 3 years in prison.

A qualification which, for the common people, sticks badly to the facts, from where this feeling of injustice and of impunity which sets fire to Aulnay under wood.

The investigating judge maintained, contre the opinion of the prosecution and after having viewed the videos, the qualification of rape for the police officer who held the baton and of willful violence for the others (although logic would have wanted them to also be prosecuted for complicity in rape in a meeting or as a perpetrator…).

What the law says ?

Article 223-23 of the penal code provides that “Any act of sexual penetration, of whatever nature, committed on the person of another by violence, coercion, threat or surprise is rape. "

For once, the text of the law is clear: Rape is an act of sexual penetration done by violence, coercion or surprise. We are in the midst of the facts of the Théo affair.

Except that… To retain the facts of rape it is also necessary an intentional element which the judges associate with the sexual will pursued by the author. This is the famous subjective element criticized by Me Dupont-Moretti.

Therefore, everything is a question of interpretation.

What does the case law say?

The intention pursued by the perpetrator of the rape is for the Court of Cassation a purely subjective criterion: It is the intention to undermine the sexual intimacy of the victim, to understand it nothing beats a few illustrations.

In a judgment where the perpetrators stuck a stick into a boy's foundation after attempting to steal money from him, the court substituted the facts of extortion, with aggravating circumstances, of barbarism, to the acts of rape initially retained.

For the Court, the motive was financial and not sexual, therefore: No rape (Cass. Crim. Of December 9, 1993, n ° 93-81.044).

Then the court sketched a reversal of jurisprudence in a case where it qualified as rape the fact of inserting a pickaxe handle covered with a condom in the anus of a boy (Cass. Crim. Of December 6, 1995, No. 95-84.881).

So we touch sex, rape. But this judgment, however common sense, will remain what is called an isolated decision, because the court of cassation will return to a very restrictive interpretation.

• A stepmother who forced her young stepson (13) to have sex was being prosecuted for aggravated rape. The judges of cassation reclassified the facts of sexual assault because, the “crime of rape is characterized only if the author carries out the act of sexual penetration on the person of the victim.”.

The mother-in-law could not penetrate the victim therefore, no rape (Cass. Crim. Of October 21, 1998, n ° 98-83.843).

• "The blow jobs performed by the author on the victim do not constitute rape, but the crimes of sexual assault." (Cass. Crim. Of August 22, 2001, n ° 01-84.024).

We do not touch the sex of the victim (oral penetration) therefore, no rape.

The coup de grace is a judgment of the criminal chamber of February 21, 2007 (n ° 06-89.543). In this case, a general practitioner was prosecuted and convicted of rape after having forced “three young patients (…) during consultations at his office, (à) introduce into their mouth an object of phallic shape covered with a condom and (their) make people perform back and forth movements ”.

The cassation judges quashed the judgment on the grounds that the rape "involves penetration by the author's male sexual organ and not by an object representing him". And the facts have been reclassified… of sexual assault.

This very strict conception shows that rape is only seen as a sexual relationship which, without the partner's consent, would end badly.

A vision all the more obsolete as it only concerns women since, as the judges never fail to point out, rape is "a penetration by the male sexual organ of the author".

Yes… a man does not cry and he is above all not a victim of rape since he can only be the perpetrator of said rape.

This considerably limits the field of prosecution of rape, to the point of emptying it of all its substance.

While the victims of such acts will consider themselves, like Theo, raped in their privacy. This is what Alexandre reports in an interview and for whom “something that goes into the anus is rape”.

Is it possible to consider rape outside the sexual sphere?

No, because apart from any intimate and sexual sphere, the court of cassation prefers the qualification of violence or torture and an act of barbarism.

In the light of the case law, the media war over the qualification to be retained between rape and violence takes on its full meaning and augurs well for a real purely legal battle.

The Theo affair could be at the origin of a reversal of jurisprudence which would allow the Court of Cassation to determine once and for all whether the rape, this penetration "by ruse, violence or surprise" can or not exist without any sexual dimension or intention.

But it will be long, we are only under indictment and in the meantime anything can happen. Until then and until the conclusions of the investigation, the investigating judge, who, it should be remembered, decided to go against the prosecution's requisitions, can however reclassify the acts as violence at any time.