Question 38443 — crimes, misdemeanors and contraventions

Summary

Mr. Erwan Balanant alerts the Keeper of the Seals, Minister of Justice, on the application of article 222-23 of the penal code defining the crime of rape, in particular, with regard to the interpretation of the notion of sexual penetration. The aforementioned article explicitly states that "any act of sexual penetration of any nature whatsoever, committed on the person of another or on the person of the perpetrator by violence, coercion, threat or surprise is rape.” However, in a judgment of October 14, 2020 (no. 20-83.273), the criminal chamber of the Court of Cassation carried out a worrying interpretation of the notion of sexual penetration, appearing to deliver an ultra legem interpretation. She, in fact, considered that the act of sexual penetration, to be characterized, must meet criteria such as “depth, intensity, duration or movement ". This interpretation seems all the more risky and shocking since, in the case in which it was seized, oral-genital acts and digital touching were at issue repeatedly perpetrated by a man on his partner's daughter, from the age of thirteen onwards. The teenager, aged nineteen at the time of her complaint, claimed in particular “I felt that he penetrated me with his tongue because of his insistence”. However, the Court of Cassation confirms the reclassification of the facts as aggravated sexual assault by the trial judges, considering that the complainant “does not sufficiently characterize a voluntary introduction beyond the edge of the vagina, deep enough to characterize an act of penetration”. In doing so, the criminal chamber of the Court of Cassation restricts the definition of rape and places rape victims in a situation of insecurity legal. This decision also seems to break with widely established case law, since a judgment of the criminal chamber dated February 21, 2007 (no. 06-89.543, bull. crim. no. 61), which retains a purely objective conception of sexual penetration. According to this case law, penetration by a sexual organ or in a sexual organ alone makes it possible to characterize the offense. In particular to prevent such restriction of the definition of rape is ratified, article 1 of law no. 2021-478 of April 21, 2021 aimed at protecting minors from sexual crimes and offenses and incest introduces articles 222-23-1 and 222-23-2 into the penal code. The latter make it possible to include oral-genital acts, whatever they may be, in the definitions of rape of a minor and the new crime of incestuous rape of a minor. However, the risk of reclassification of acts of sexual penetration as sexual assault, when the depth of the penetration is not established, remains, in particular if the victim is an adult. In order to avoid a lasting development in jurisprudence going in this direction and reducing the protection granted to victims, he asks what measures he intends to use to clarify the notion of sexual penetration.

Machine translation from French. The official text remains authoritative.

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