“Upon hearing her first morning yawn, I feigned handsome profiled sleep. I just did not know what to do. Would she be shocked at finding me by her side, and not in some spare bed? Would she collect her clothes and lock herself up in the bathroom? … But my Lo was a sportive lassie. I felt her eyes on me, and I knew her eyes had been laughing. She rolled over to my side, and her warm brown hair came against my collarbone.”1 Lying at the heart of Lolita, Vladimir Nabokov’s controversial 1955 novel, is Humbert Humbert, a middle-aged literature professor who is filled with lust for the 12-year-old “Lolita”. At 12, Lolita is sexually precocious; Humbert Humbert recounts with faint surprise that “it was she who seduced me”.
In most jurisdictions, the sexual relations between Humbert Humbert and Lolita would be unequivocally classified as rape, given the prevalence of minimum age limits for consent today. It comes as a shock, therefore, that an 11-year-old (“Sarah”)2 was deemed to have consented to sex with a 28-year-old man in a recent French decision, with rights groups now calling for the introduction of a legal age under which consent is irrefutably presumed to be lacking.3 The French public prosecutor stated that “there had been no violence, no coercion, no threat, no surprise”, as required in Article 222-23 of the French Penal Code for the offence of rape to be established.4 As a result, the offender was instead charged with “sexual infraction” under Article 227-25 of the French Penal Code, a non-criminal offence punishable by a 5-year prison sentence and a €75,000 fine.5 Had the offender been found guilty of rape of a minor under Article 223-24, he would have faced a maximum sentence of 20 years’ imprisonment.
There are marked differences in the laws on sexual consent of minors in France and England. The age of consent in France is 15. However, “violence, constraint, threat or surprise” is a necessary element of offence of rape, as clearly stated in Article 222-23 of the French Penal Code. In the absence of “violence, constraint, threat or surprise”, sex with a minor merely constitutes an “atteinte sexuelle”, which is a non-criminal infraction. The Cour de Cassation, France’s highest criminal court, ruled in 2005 that “the state of constraint or surprise results from the very young age of children… which [makes] them incapable of realising the nature and gravity of the acts imposed upon them”.6 The defendant in that case was found guilty of rape, as the victims were between 1.5 and 5 years of age; that “Sarah” was held to have consented to sex indicates a lacuna in the law which leaves those between 5 and 15 years of age prone to exploitation.
In contrast, the age of consent in England is 16, with the possibility of harsher sentences being meted out in cases where the victim is below the age of 13 (ss 5-8 of the Sexual Offences Act 2003). Where a person intentionally penetrates the vagina, anus or mouth of someone below the age of 13 with his penis, he is guilty of the offence of rape of a child under 13 (s 5 of the Sexual Offences Act 2003) - there is no further question about whether the victim had the capacity to consent. The House of Lords affirmed in R v G7 that the absence of consent is irrefutably presumed where the victim is under 13 years of age; “to the extent that the offence is one of strict liability… it is no defence that the accused believed the other person to be 13 or over” (Lord Hoffmann).8 In contrast, the French Constitutional Council ruled in February 2015 that French law “does not set an age of discernment in regards to sexual relations: it is for the courts to determine whether the minor was capable of consenting to the sexual relationship in question”.9
History provides some explanation of the differences between the two legal regimes in their treatment of sexual consent of minors. Under the Offences against the Person Act 1861, the age of consent in England was 12. Age of consent reforms were in large part driven by social purity campaigns and feminist movements,10 with prominent feminists such as Josephine Butler campaigning against child prostitution in the 1880s.11 W. T. Stead’s dramatic exposé of child prostitution, “The Maiden Tribute of Modern Babylon”, was published in the Pall Mall Gazette in 1885; it exposed the scourge of child prostitution in London and plunged British society even further into the depths of a moral panic over sexual dangers.12 As social outcry grew, this age was raised to 13 under the Offences Against the Person Act 1875, and finally to 16 under the Criminal Law Amendment Act of 1885.
The portrait of English laws on sexual consent of minors is therefore one of feeble legal protections that were eventually bolstered by the relentless forces of social advocacy. France, however, had a radically different starting point. The French Penal Code of 1810, which was birthed under Napoleon as a replacement of the Code des délits et des peines of 1975, mostly focused on crimes against the state and crimes causing bodily injury. The only sex-related offence was in the legislation was that outlined in Article 331 (“Who shall commit the crime of rape, or shall be guilty of any other attack upon the modesty, consummated or attempted, with violence, against an individual of either sex, shall be punished with solitary imprisonment.”), with no distinct provisions for sexual offences against minors.
Two broad social trends in French history further accentuated the already bare provisions on sexual consent of minors. First, minors have traditionally been ascribed with greater legal responsibility in French law than their peers in other jurisdictions. Article 122-8 of the French Penal Code provides that “minors able to understand what they are doing are criminally responsible for the felonies, misdemeanours or petty offences of which they have been found guilty…”, so children as young as 8 may face punishment, albeit with nothing more than an educational measure.13 The general recognition of minors as possessing relative, even if not absolute, capacity and discernment has held true within the realm of sexual relations, and partly explains why French courts are more willing to find minors capable of consenting to sex. Second, the distinctive emphasis of liberty in France’s collective consciousness has had the twin effect of liberalising sexual relations while confining legal punishment as an absolute last resort. French philosophers and writers, such as Michel Foucault and Louis Aragon, wrote extensively about sexual freedom; they vehemently opposed the repression of sexuality, which they believed an innately human feature.14 At the same time, criminal punishment increasingly came to be viewed as a heavy-handed circumscription of individual autonomy. The 1832 revision of the French Code liberalised the penal law by significantly mitigating punishment.15 In essence, French criminal law has generally been more willing to recognise the maturity of minors and more hesitant about imposing punishment – and these characteristics of French criminal law are evident in Article 227-25 of the French Penal Code.
Article 227-25 of the French Penal Code (“The commission without violence, constraint, threat or surprise of a sexual offence by an adult on the person of a minor under fifteen years of age is punished by five years' imprisonment and a fine of €75,000.”) may be criticised on several grounds. First, it fatally ignores the power asymmetries that typify sexual relations involving minors.16 Many adult-minor sexual relationships involve gentle cajoling that does not constitute coercion or threats, but the power dynamics at play render it difficult for children to protest, with the result that a child’s lack of resistance may well be mistaken for affirmative consent. Second, Article 227-25 arguably fails to adequately observe the principle of “fair labelling”. While rape is criminalised in Article 222-23 of the French Penal Code, the Article 227-25 offence is not labelled as rape; in contrast, the s 1 offence of rape in the Sexual Offences Act 2003 finds its equivalent in the s 5 offence of “rape of a child under 13”, where the victim is a minor. The term “rape” connotes a sexual crime of the worst degree, and the failure to designate the wrongful conduct covered under Article 227-25 as such means that the nature and magnitude of offenders’ wrongs are not fairly represented.17
In addition, French courts should be more wary about finding minors capable of sexual consent. The empirical basis for such findings is dubious at best, and existing scientific literature overwhelmingly supports the conclusion that minors are ill-equipped to consent to sex. The prefrontal cortex, which is responsible for cognitive analysis and the exercise of good judgment, only fully develops around the age of 25.18 While not an argument to raise the age of consent to 25, it does heavily cast doubt on the notion that children as young as 8 are capable of consent. Most minors lack the cognitive and psychosocial competencies which are prerequisites for the provision of meaningful consent.19 Moreover, adolescents below the age of 15 are more prone to engaging in risky behaviour even when cognisant of risks – this may be because adolescents are more likely to be swayed by emotion when making decisions, as neuroimaging studies have revealed.20 Furthermore, while proponents of a lowered age of consent emphasise the importance of sexual autonomy,21 “stratified levels of risk tend to impact differentially upon younger children”.22 The potentially negative effects of a confusing sexual encounter on a minor’s self-image may well be exacerbated by the minor’s age, while the emotional ramifications of an unwanted pregnancy will likely be more serious for a minor because of a greater transgression of social norms. The law should therefore err on the side of caution by being reluctant to conclude that a minor has sexually consented.
In light of “Sarah’s” case, how should the French law on sexual consent of minors be reformed, if at all? One possibility would be to introduce laws against the “seduction” of youths; for example, Denmark criminalises the “gross abuse of a superiority based on age and experience” while Finland criminalises the “taking advantage of immaturity” in sexual relations.23 Such laws do not categorically deny the capacity of minors to consent to sex, and are thus relatively compatible with existing French law, but recognise the power relations in adult-minor sex that render many minors vulnerable to abuse. However, many “seduction provisions” render sexual contact with a minor criminal only if the older party is the one who initiates the contact – the obvious difficulty with such provisions is that it is rarely discernible who initiated each sexual contact.24
Such complexities notwithstanding, the foremost priority of the French courts should be to revisit the legal provisions on sexual consent for those aged 12 and below, who are the ones most vulnerable to sexual exploitation. The image of the modern-day Lolita has been increasingly popularised; consequently, it is all too easy to subscribe to the idea of adolescents as sure-footed, certain, and fully in charge of their sexual autonomy. But only after her sexual encounter with a 28-year-old man did “Sarah” begin to comprehend what had just transpired. Utterly distressed and gripped with panic, she called her mother hysterically. It is time for society to abandon the fiction of the sexually desirous and psychologically mature minor, and to instead realise that we are dealing with minors in dire need of protection.