The criminal law endeavors to list rigorously the definition of offenses (contraventions, misdemeanors and crimes) which appear in the penal code. The criminal law is strictly interpreted, that is to say that each word has its importance in the articles of the Criminal Code.
Thus forced fellatio, since it does not correspond to the spontaneous and typical image that we have of rape, raises questions about its "qualification", that is to say about the article that the judge would apply precisely to acts of forced fellatio.
Is forced fellatio rape or sexual assault?
Is forced fellatio rape or sexual assault? Forced fellatio is rape. Article 222-23 of the Penal Code traditionally defines rape as "Any act of sexual penetration, of whatever nature" committed by violence, threat, coercion or surprise. It is therefore an act of penetration by sex, which covers the hypothesis of penetration by the aggressor's penis, whatever the nature of the penetration (vaginal, anal or oral). But it's also about penetrations in sex, thus covering the hypothesis of a penetration of the victim's vagina with anything.
Thus, by the interpretation of the definition of rape, fellatio is a oral penetration through sex.
Forced fellatio is rape, even if it is the victim who receives it
Article 222-23 of the Penal Code was amended accordingly by the law of August 3, 2018. The new wording of the article defines rape as an act of sexual penetration "committed on the person of another or on the person of the author”.
Criminal law criminalized penetration by author rape on others. Henceforth, it also incriminates under the name of rape the penetration by the victim on the person of the perpetrator. Thus, is qualified as rape the fact of imposing on a person a fellatio, that it is imposed on him to receive or make.
Forced cunnilingus is also rape
The law of April 21, 2021 again amended article 222-23 of the Penal Code so that under the name of rape is grouped all oral sexual acts. This law comes following a decried judgment delivered by the Court of Cassation on October 14, 2020.
In the case judged, it was established that the perpetrator had imposed cunnilingus on the victim without having committed an act of penetration on the victim and without having intended to do so. The Court ruled that the bucco-genital relationship which does not exceed “the edge of the vagina” was incriminated in terms of sexual assault because no penetration in the strict sense was involved.
The law of April 21, 2021 amended the law following this decision. Article 222-23 thus amended now specifies that under the name of rape it is necessary to include any “bucco-genital” relationship committed under violence, coercion, threat or surprise.
Thus, by operation of law, all forced oral-genital intercourse constitutes rape in the proper sense of the term.
The logic of the division between rape and sexual assault
Sexual assault is mentioned in article 222-27 of the Penal Code and is not clearly defined. These are “sexual assaults other than rape”. Thus, the qualification of sexual assault is to be considered with regard to that of rape. Its purpose is to incriminate the acts of a sexual nature because of the way in which they were carried out and the context in which the facts took place.
This definition is given in a recent decision of the Criminal Division of the Court of Cassation of February 3, 2021. It makes it possible to criminalize acts of a sexual nature which do not meet the legal definition of rape.
We can give the example of touching parts of the body with a sexual connotation by the author and de the author. The fact of touching the buttocks of others, the breasts or the private parts will thus be considered as sexual assaults. The fact of forcing the victim to come into contact with the private parts of the perpetrator of the aggression will also be considered as sexual assault.
While rape without aggravating circumstances carries a 15-year prison sentence, sexual assault is punishable by 5 years' imprisonment and a fine of €75.
If certain acts of rape are prosecuted in terms of sexual assault, this may correspond to a strategy of the Magistrates du Parquet (what we could call the prosecutor or the Public Ministry). Indeed, faced with acts of sexual violence, the judge will be less inclined to judge guilt as the effects will be heavier for the alleged perpetrator. So faced with a possible weakness of the evidence, the Magistrate will prefer to fight against impunity than for the accuracy of the qualifications retained.