A 28-year-old man will be tried on February 13, 2018 in the Parisian suburb of Pontoise for “sexually abusing a minor” after having sex with an 11-year-old girl. The family accuses him of “rape”, but the Pontoise court refutes the charge.

The trial, previously scheduled for September 26th, has been postponed due to the outcry from politicians, associations and the general public, after the case was reported in “Mediapart”, an online news websites.

According to the French Criminal Code (Article 222-23) an act is qualified as rape when “any act of sexual penetration of any kind is committed on another individual by violence, constraint, threat or surprise “. In this particular case, the prosecution considers that the girl was not physically constrained. This argument is cited in rebuttal of “rape”, thereby considering that the girl “consented”. This would constitute a “sexual assault” offense, which is only punishable by 5 years in prison and a fine of 75,000 €.

The girl’s mother claimed that she didn’t protest due to fright and bewilderment at the time of the incident: “She was paralyzed by panic; she didn’t dare move, for fear of being brutalized. She thought it was too late, that she didn’t have the right to protest, that it wouldn’t make any difference, so she went into auto pilot, without emotion, and without reaction.”

The young girl’s attorney, Carine Diebolt asserts that the girl was raped; and therefore the man must be tried before a court of assizes, where he could be liable for a 20-year prison term. She states that the girl’s young age should automatically infer that she was “surprised”, and “constrained» to have sex. “It’s a crime,” she related to French TV channel “BFMTV”. “This is a 28-year-old man, who knew she was only 11 years old. She was intimidated. We invoke the clause of surprise; she did not expect such menacing statements. He was assertive and threatened her reputation. As they both live in the same city, we know very well that the law of silence reigns. “

The French Constitutional Council upheld in their decision dated February 2015: the law “does not set an age for discernment, the courts must assess whether the minor consented to the sexual act in question“.

Hence the question, which transcends the scope of this case: should the law specify a legal age under which sexual consent is never presumed? Former French Minister for Families, Children and Women’s Rights, Laurence Rossignol, now intends to introduce a bill on this subject.

The High Council for Equality between Women and Men recommends a threshold age for presumption of non-consent, as exists in other countries (in 2016, they recommended the limit be set at 13 years of age).