The trial of dozens of men accused of raping a woman while she was drugged into unconsciousness by her husband has provoked horror in France. Beyond outrage, legal experts say the case exposes the need to revise the French penal code to place consent at the heart of what constitutes a sex crime.
Police say the videos leave little uncertainty over the events.
As investigators have told the Avignon criminal court, they uncovered dozens of clips showing men penetrating a woman who lies apparently unconscious, sometimes snoring.
That woman is Gisèle Pélicot and the man accused of drugging her, inviting strangers to their home and filming the images is her ex-husband, Dominique Pélicot.
While he says his acts make him a rapist, the 50 other men on trial with him don't necessarily see themselves the same way.
Defence lawyers have argued that their clients were unaware that Gisèle Pélicot had not given her consent beforehand, nor did they have the obligation to seek it directly.
"This is not American law. In France, you don't need to have obtained the victim's consent necessarily to ensure that it's not rape," Guillaume de Palma, who represents several of the defendants, told reporters last week.
Earlier the same day, he had caused outcry in the courtroom when he remarked: "There's rape and there's rape, and without intent to commit it, it's not rape."
Law out of date?
However objectionable that might sound, legal experts point out that France's current laws leave room for such arguments.
The notion of consent is not included in the legal definition of rape, explains Nathalie Tomasini, a lawyer who specialises in representing victims of domestic violence.
Instead, the criminal code defines rape as a sex act committed "by violence, coercion, threat or surprise".
In this case, the defendants may claim that they did not use any such measures. Some seem to believe that Dominique Pélicot's invitation gave them permission – "as if this woman was nothing but an inflatable doll, who had no right to say whether she consented or not", Tomasini told RFI.
She counters that Gisèle Pélicot was under chemical constraint, having been given powerful medication, and that her state of unconsciousness means she was subjected to surprise.
But beyond one verdict, Tomasini believes the trial raises "essential questions" for France's justice system.
Notably, she told RFI, it highlights "the need to change the law, and perhaps recall that the notion of free, voluntary and informed consent must now be incorporated into the definition of rape".
Debate, but no reform
There have been pushes to do so before: lawmakers presented proposals to that effect in the upper house of parliament last November and the lower house in February.
The most recent suggested rewriting France's criminal code to state that any sex act performed "without voluntary consent" constitutes rape, while specifying that this consent must be sought and cannot be assumed from "absence of resistance" alone.
Neither bill, however, made it into a debate before the end of the legislative session. Meanwhile a parliamentary commission tasked with looking into the question has yet to deliver its conclusions.
EU agrees first law on violence against women, fails to find consensus on rape
France was one of a dozen countries that opposed the European Union's recent effort to establish a shared definition of rape based on the notion of affirmative consent – namely, the idea that "only yes means yes".
Several other EU countries have already enshrined it in national law, including Belgium, Denmark, Greece, Ireland, the Netherlands and Spain.
French officials maintained that they objected only on the grounds that most criminal law is a matter for each member state to decide, and on this year's International Women's Day, President Emmanuel Macron declared himself in favour of adding consent to France's own definition of rape.
Yet in the six months since, no reforms have followed.
Rallies across France in support of woman who was drugged, raped
Back in the headlines
The Pélicot trial has brought the issue back into the headlines, with outgoing Equality Minister Aurore Bergé declaring this week that the defence's argument "proves our point that we need to change the law and the question of consent must be written in black and white into the criminal code".
The minister, like the rest of the cabinet, is soon to be replaced by a new, conservative-led government and there are no guarantees it will share the same priorities.
But Tomasini hopes the media blitz surrounding the case, made possible by the victim's insistence that it be tried in open court, will result in meaningful scrutiny.
She said: "Women, and society as a whole, should thank Gisèle Pélicot for giving everyone the opportunity to understand the issues involved in this trial."
