As the Trial of ‘Mr. Every Man’ Draws to a Close, France Debates ‘Intent’ vs. ‘Consent’
The Pelicot trial pits the notion of intent against the concept of consent. The outcome could alter how these kinds of cases are handled in the future.
Every day for the last four months, Gisèle Pelicot, 72, has emerged from the courthouse in Avignon, France, to a cheering crowd of almost all women. Usually someone will hand her a bouquet. Choirs have sung for her. Women have marched for her. People from all corners of the globe have sent her letters and gifts.
The sleek modernist courthouse sits directly across a wide street from the medieval ramparts of Avignon and, since early September, has been the site of a historic trial in which 50 men stand accused of sexually assaulting Gisèle Pelicot, while she was drugged and unconscious. The men had taken part in the assaults at the urging of Pelicot’s husband, Dominique Pelicot, also aged 72.
Dominique Pelicot has already admitted to the facts of the case: Over the course of a decade, he crushed anti-anxiety medication and sleeping pills and slipped them into his wife’s food. After she had passed out, he invited men he’d met in internet chatrooms to rape her in the Pelicots’ marital bed. Often he filmed the scene; sometimes he joined in.
The videos, which were found on Dominique Pelicot’s devices and routinely shown as evidence in court, are profoundly disturbing, almost unwatchable.
As for the men, they are largely unremarkable. Among them are a firefighter, a nurse, a journalist, a prison warden, a soldier, farm workers, and truck drivers. Their ages range from 26 to 74. They are fathers and husbands. “Mr. Every Man” the media dubbed them.
And then there is Dominique Pelicot himself, a retired electrician and avid cyclist. His children thought he was a great father and grandfather, his wife often remarked to herself how lucky she was to have him.
The lurid details of the case have captivated France but the trial has also sparked a national conversation about the very definition of rape. The arguments presented in the courtroom have pitted the notion of intent—does a person have to expressly intend to rape for a sex act to qualify as a crime—against the concept of consent. And on the latter point of consent, must it be expressly given? Or can it be assumed or given by proxy? Indeed, is it even required?
The outcome of this trial could alter how rape cases are handled by France in the future. It could result in a rewriting of the legal code. So far, the proceedings have already called into question how rape victims are treated by the French legal system and challenged a widespread culture of misogyny.
Unpacking ‘Intent’
It may seem obvious that sexually penetrating a woman who has been drugged into oblivion is indeed rape, but some of the men’s defense lawyers have argued that it cannot be rape if the men didn’t intend to commit an act of rape.
The penal code defines rape as “any act of sexual penetration, whatever its nature, committed on another person through violence, coercion, threat, or surprise,” but the legal system also seeks proof of intent.
“French case law, perhaps wrongly, says that without intent to commit rape, there is no rape, period,” Guillaume de Palma, a defense lawyer representing several of the accused men, explained to me. He was elaborating on an earlier public statement he made that “you don’t need to have obtained the victim’s consent necessarily to ensure that it’s not rape.”
Indeed, some of the men accused of raping Gisèle Pelicot have argued that they did not believe they were committing rape because Dominique assured them it was OK to have sex with his wife. Others argued that Dominique intimidated them into having sex with his drugged wife—the point in both these arguments being that they didn’t have rape on their mind at the time of their actions. “It’s not me in the video,” one defendant insisted. “It’s my body, but not my brain.”
Unpacking ‘Consent’
But what about the victim? As Stéphane Babonneau, one of Gisèle Pelicot’s lawyers, has repeatedly asked the accused: If they didn’t intend to rape her, does that mean that, while no one disputes that she was drugged and sexually abused, she wasn’t actually raped?
That's where consent enters the picture.
Babonneau argues that, while it might not be explicit, the need for consent is implicit in the way the law is written. Sex by violence, coercion, threat, or surprise is, de facto, not agreed to, he argued. “In each of these concepts, there’s the idea that there’s no consent,” Babonneau told me. “The word isn’t written down, but the concept is there.”
Still, he believes that adding a consent clause to the law would do little to protect victims. “If we actually write the word consent, it means that it will be up to the prosecution to prove that there was no consent,” he said. “In other words, we're indirectly putting the onus on the victim.”
Hanging the definition of rape on consent could inadvertently create other problems as well, said Antoine Camus, another lawyer for Gisèle Pelicot. “The difficulty is that yes isn’t always yes,” he said. “We can consent under pressure…there are unequal relationships of dominance.”
To Change the Law...Or Not
Anne-Cécile Mailfert, the founder of the Fondation des Femmes, an organization that raises money to fund projects promoting equality for women and ending violence against women, also opposes changing the law. She believes that adopting a consent-based definition of rape would place the victim’s actions at the center of the legal debate, and not the aggressor’s. It would, she explains, place the burden on the victim to prove that she (or he) hadn’t consented to sex.
But there are many who disagree. Magistrate Magali Lafourcade is the Secretary General of the National Consultative Commission on Human Rights, a French government body that protects and promotes human rights in the country. She was one of 500 activists, politicians, and lawyers who recently signed an open letter calling for a consent clause to be added to the law.
In her previous work as an investigating magistrate—the person in the French court system who oversees pre-trial evidence and investigation—she saw many cases in which a perpetrator’s intent wasn’t clear. The result? The legal definition of rape didn’t cover enough ground to warrant prosecution.
“With the way the law is written, there are plenty of situations where you can't get a conviction for rape because there may be doubt about the perpetrator's intention to disregard consent,” she said.
And while it's true that with video evidence, defendents cannot deny their actions, they can say that they had no intention of raping anyone.
Specifically adding a consent clause to the statute would eliminate such arguments, and bring clarity to what are often murky situations, said Patrick Gontard, a lawyer representing another defendant who is currently on trial for allegedly drugging his own wife and inviting Dominique Pelicot to rape her.
“So, if I'm a man, I go into a woman's hotel room and I'm obliged to ask for her consent, that would be clearer,” Gontard said. While a change in the law would not affect his current client, Gontard believes it would lead to more straightforward prosecutions of rape. “I think we need to establish consent on both sides, so that there’s no ambiguity.”
How France Measures Up
Rewriting the law may not be a perfect solution, but given France’s dismal performance on rape prosecution, some kind of change is clearly called for. Roughly 86% of sexual violence complaints and 94% of rape complaints are dismissed right away in France, according to a report issued this year by the Institute of Public Politics, a French non-partisan research body.
“The prosecutor doesn't even investigate, he just sees that the victim's account of the incident already shows that it won't fit into the legal categories,” Lafourcade said. “As a result, about nine out of 10 women don't lodge a complaint.”
And those who do pursue legal action rarely see their efforts pay off. According to estimates based on figures from the Ministry of Justice, only 0.6% of reported rapes end with a conviction.
France is hardly the only European country without consent enshrined in its penal code, but the tide is turning: Spain passed an “only yes means yes” law in 2022 and Belgium ratified a consent-based definition of rape that same year. The Netherlands enshrined consent in its legal code in 2023, and Poland made sex without consent a crime in June 2024.
France also lags behind public opinion: A 2023 poll by the French Institute of Public Opinion found that 89% of those surveyed favored the adoption of a consent-based rape law. But while there are some members of parliament pushing for change, the current political instability–France is about to get its fourth prime minister since January–makes it nearly impossible to get anything done.
Gontard thinks the debates sparked by the Pelicot trial show that it’s time for France to catch up. “I think we’re going to have to come up with a definition of consent here,” he said. “We’re now lagging behind the evolution of society.”
Or, as Gisèle Pelicot told the court: “It’s time that the macho, patriarchal society that trivializes rape changes. It’s time we changed the way we look at rape.”
Josie Cox
Aubrey Hirsch
Josie Cox
