The perception of rape has evolved in French society under the influence
of economic, political and social factors. To recall the way in whichthis act has been considered according to the times and to try to draw
up an assessment, we will rely here mainly on Histoire du viol -
XVIe-XXe siècle by Georges Vigarello, historian and philosopher
specializing in the body and its representations. This work (1) is
indeed a reference due to the wealth of its documentation: legal texts,
victim testimonies, police reports, medical works, philosophical essays
and even artistic works. ---- Rape under the Ancien Régime: a blasphemy
and physical violence
In the society of the 16th and 18th centuries, where social relations
were quite brutal, rape constituted physical violence among others (and
it was authorized, like pillaging, during wars). By sentencing to
tortures such as the wheel or hanging (carried out in public "as an
example"), the judges were particularly harsh on so-called "highway
theft," because this act represented a danger to the safety of travel
and the security of property. However, the word "rapt" was used to
designate both theft and the rape of a woman, since rape was a way of
taking property from the... owner of the woman: her father, husband, or
guardian. When a girl lost her virginity, it was a loss for the man on
whom she depended since he could no longer marry her-virginity was the
condition of marriage, and marriage was used to conclude all kinds of
arrangements between families. Rape was also an offense against God, a
moral transgression associated with crimes against morality
(fornication, adultery, sodomy[2], bestiality). A raped woman was
defiled by the "perversion" in which she had been involved. She knows
that she will be socially rejected if she speaks out, which encourages
her not to do so. If she belongs to the upper classes, she can be sent
to a convent to "redeem her fault". As for the rapist, the treatment he
receives depends on both his social rank and that of his victim: case
law punishes very little sexual violence committed by masters on their
servants, but harshly that committed by valets on their mistresses.
Finally, a woman's complaint of rape is only recognized if she has shown
her refusal by gestures and cries, and if signs of struggle or injuries
are noted. Her silence is "proof" of approval. Especially since a woman
is commonly considered physically capable of defending herself against a
man alone to save her virtue. In the 18th century, philosophers of the
Enlightenment such as Voltaire or Diderot were convinced of this.
Rousseau joins Casanova (who advocates "brusque la modesty" of a woman)
when he writes that violence is part of sexual relations; or that by
giving in to a man and then invoking his violence a woman just wants to
put on a show. And doctors help to freeze inequality between the sexes
by assuring that the physical constitution of women (their muscular
weakness or the "smallness of their size or brain") subordinates them
"naturally" to men.
With the growth of cities and their industries, the rise of the nuclear
family in Europe leads to the development of domesticity in the upper
classes - this results in an increase in the rape of servants by their
masters (3), who benefit from relative impunity. In working-class
circles, the high promiscuity encourages sexual assaults (they generally
take place in bedrooms, adjoining conveniences, stairways or backyards).
The rapists are companions, workers, craftsmen and shopkeepers belonging
to the immediate neighborhood of their victims. There has been an
increase in trials for rape of girls (4).
The French Revolution: from the woman-object to the woman-subject
In the 1770s, men of letters, lawyers and newspapers showed a new
compassion for rape victims (5) - but especially when it came to
children: they had to be protected, instead of condemning them as
"libertines" or debauched.
The revolutionaries of 1789 proclaimed equality between the sexes
(without granting civil rights to women). In his preliminary memorandum
to the Constitution, on July 20, Abbé Sieyès said: "Every man is the
sole owner of his person and this property is inalienable."
This statement resulted in the recognition of women's freedom - and a
shake-up in the way rape was viewed: if the victim of this act was no
longer the property of a "guardian", it was she and no longer he who
suffered harm.
The Penal Code of 1791 classified rape as a "crime and attack against
persons" (and not "against property"). Article 29 declared rape (and not
abduction) "punishable by six years in irons" - but the term was not
defined, and in police investigations the only criteria used to qualify
rape were forced genital penetration and the use of force.
In the turmoil of the period, judges targeted the adversaries of the
republican order: on the one hand, rural people with "archaic" morals,
on the other, libertine nobles (such as Sade). They consider, like the
deputies, the importance of intention and consent in rape cases; and,
concerning abused children, the possible existence of violence other
than physical in this act. However, judicial practice does not follow
their reflections.
Under the First Empire, the most feared social transgression remains
damage to property, and inequality between men and women is reinforced.
As early as 1804, the Napoleonic Civil Code contradicts Sieyès' formula
by affirming, on the one hand, that the husband must maintain and
protect the wife, and the wife obey the husband; on the other hand, that
the management of property and parental authority are exercised by the
"head of the family".
The Penal Code of 1810 "protects the family" by punishing female
adultery (which the French Revolution had suppressed in the name of
individual freedom), but not male adultery (6). The husband has the
right to denounce his wife's adultery, the reverse is impossible; the
adulterous husband is guilty only if he "maintains a concubine in the
marital home"; adultery can be punished by prison for the woman, by a
fine for the man. The justification for such a distinction? Female
adultery risks introducing illegitimate children into the family. And
since the same concern drives the legislator in matters of rape, it is
only vaginal penetration by a penis that defines this crime.
If women see their subordinate status in society worsen - as evidenced
for example by judgments against them in trials on marital brutality, or
the frequent downgrading of rape to "indecent assault" - children are
the object of particular attention (7). Questions are raised about
"violent indecent assault on a minor" as well as incest - which a rapist
father justifies during his trial by his right to "do such stupid things
with[his]daughter" because she is his property. The law of 1832 states
that any touching of a child under 11 is, in principle, violent - he
cannot therefore "consent" to it. The press focuses on certain cases of
rape with murder of children, and the specificity of these crimes
(explained by the madness or alcoholism of the attackers, or even by the
impotence of old people) leads to the distinction, after 1850, between
crimes against minors and crimes against adults in the General Account
of Criminal Justice (8).
Demonstration in Paris against Roman Polanski - accused by several women
of sexual violence against minors - during the Césars du cinéma ceremony
on February 28, 2020. At that time, the development of "white-collar"
jobs put many women at the mercy of bosses, foremen and department heads
(9). Legal thinking on "seduction" led to broadening its scope to abuse
of authority, blackmail by masters and sexual relations imposed under
threat by a superior. In 1857, at the trial of Dubas (a man who slept
with a woman while pretending to be her husband), the Court of Cassation
considered that there was rape when the aggressor resorted to "physical
or moral violence" or "any other means of constraint or surprise". The
definition of this act changed in dictionaries after 1870: "There is
rape whenever the free will of the victim is abolished", says for
example the Grand dictionnaire Larousse in 1876 - physical violence is
thus associated with threats, pressure or deception (by taking drugs,
for example).
However, complaints of rape against women remain few in number, because
the act must occur in front of witnesses and in a public place to be
subject to proceedings. In the private sphere, the intervention of
neighbors during a rape encourages the filing of a complaint; but, even
if there are "signs of struggle" between the victim and the aggressor,
the trial often ends with the latter being acquitted (between 1860 and
1890, the average acquittal rate was 53.2% for rapes of women, compared
to 23.7% for rapes of children).
The words of a raped woman continue to be assessed in light of her
lifestyle (she is not "wise" if she lives in a common-law relationship,
for example).
Moreover, as the individual and his psychology arouse increasing
interest in society, the "violator" becomes the object of curiosity
fueled by the press, which is fond of sensational facts, and criminal
anthropology seeks physical criteria (such as a low forehead) that allow
this "deranged" or "maniac" to be recognized in the midst of urban
anonymity. Sexual violence has long been attributed to the margins and
to poverty: it necessarily emanates from vagrants, those who refuse to
work, or foreigners. However, in the trials for rape or "attack" held at
the Versailles assizes between 1840 and 1850, the accused belonged to
the common people of the cities: they were workers exercising about
fifty professions (the highest socially were merchants or teachers); and
the absence of rapists belonging to the bourgeoisie reflects above all
the means (financial or relational) that they had to avoid the courts.
Rape in the 20th century: individual suffering and moral violence
The consideration of irrepressible impulses in individuals led, towards
the end of the 19th century, to considering rape as an act of both
physical violence and power and domination. The rapist is an "ordinary
monster" not identifiable by his physique.
Since the beginning of the last century, many laws have granted rights
to women: free disposal of their salary, maternity leave reimbursed by
Social Security, identical school programs for girls and boys, the right
to vote and be eligible, authorization of contraception and abortion,
etc. These laws were partly aimed at meeting the labor needs of the
capitalist system: women had to be able to work a double day while
continuing to perform domestic tasks in addition to their paid work
(10). But it is, of course, through their mobilizations that women have
acquired autonomy - fragile because it is a function of economic issues
(11). In the post-68 period, the Women's Liberation Movement (MLF) made
the fight against rape synonymous with the fight against male
domination. Feminist mobilizations forced the revision of the Penal Code
(see box). In 1992, sexual violence was reclassified from "moral
attacks" to "sexual assault". Now, sexual harassment, verbal or
psychological aggression and rape between spouses are explicitly
recognized in law. Rape - punishable by fifteen years of criminal
imprisonment (except in aggravating circumstances) - is "any act of
sexual penetration, of whatever nature, or any oral-genital act
committed on the person of another or on the person of the perpetrator
by violence, constraint, threat or surprise"; sexual assault is any
sexual attack without penetration (kisses, caresses or touching) when
the victim's consent is not clear and explicit. In the last part of his
History of Rape, Georges Vigarello welcomes these "changes in culture
and sensitivity[which]have made the legal and conceptual tools acquired
at the end of the 19th century concretely operational". However, a
quarter of a century after the publication of his work, such an
observation seems somewhat optimistic. If, in 1978, the Aix-en-Provence
trial forced a debate on the notion of consent, the "Mazan affair"
showed a few weeks ago the need to continue to shout that a woman's body
belongs to her alone (no one else has the right to dispose of it), and
that the responsibility for a rape lies with the aggressor and not the
victim (see the following article).
Patriarchal and class constants still to be fought
Vigarello certainly highlights the need to consider sexual violence as a
social and political problem rather than a private matter, but he
attributes to a "resistance of morals" the various procedures used by
the judicial institution to reduce the penalties provided for by the law
in matters of rape.
In fact, this institution remains a pillar of the established order and
defends it in this area (and in others) despite its large feminization.
The doubt that the words of a raped woman often arouse is also strongly
due to the image of women conveyed by other patriarchal institutions (in
particular the family and school) and perpetuated by the market (in
particular by the gendered products promoted by advertising, the media
and social networks).
Finally, in a modern security society such as France, the problem of
rape is located at an individual and health level when it is a societal
problem.
The focus on the "intimate" and on the "serious moral prejudice" thus
leads to treating a convicted rapist with treatments and therapies: his
sentence is combined with the obligation of "medical-social monitoring"
supposed to prevent reoffending. And we turn to the State as if it were
a "neutral agent", and not the guarantor of the established order, to
obtain more social control, repression and support for victims. The
reflection on means of self-defense against rapists undertaken in France
in the 1970s (and still conducted in Latin American countries) is thus
abandoned. Vigarello is right to write that the margin of tolerance for
sexual violence has narrowed. The explosion of #MeToo and other hashtags
is a sign that many women are less willing to keep quiet, these days,
when they are confronted with violence and suffering in their
relationships with men. However, a woman's lack of economic independence
or the presence of children in her home often dissuades her from leaving
a violent man, although divorces are overwhelmingly a female process
(12). And the persistence of patriarchy is reflected in many behaviors.
Examples:
The controversies over "consent" largely reflect misogynistic prejudices
inherited from religion. While women are no longer openly described as
"sinners" or "impure beings," they are easily suspected of being liars
or fickle, or of pushing men to make "advances" to them through
provocative attitudes.
In 2014, an Indian photographer took photos of... fashion, inspired by
the assault and rape by six men of a student (who died shortly after),
on a bus in New Delhi in 2012.
While rapes are overwhelmingly committed in the private sphere by a man
known to the victim, the fear of being assaulted by strangers encourages
women not to go out at night. This fear is maintained by a dominant
discourse aimed at convincing people that we must rely on governments to
prevent any danger, because it is now impossible to change the world.
The reluctance of many raped women to go to court reflects a desire not
to face the ordeal of filing a complaint and a trial, or the shame and
guilt of not having defended themselves better during their assault...
or the conviction that filing a complaint is useless. Regardless of the
severity of the sentences provided for by the law depending on the era,
in fact, rapists escape them for the most part, thanks either to the
reclassification of rape as a simple offence, or to the dismissal of
complaints filed.
In the upper classes, many rapists get away with it as well as yesterday
thanks to arrangements with their victims; these arrangements sometimes
take the form, today, of contracts certified before a notary and
sometimes communicated to the judge.
Let us add to this picture that, while being condemned by international
bodies such as the UN, rape remains a "weapon of war" throughout the
world: entering a territory and taking possession of it also means
penetrating the women who live there as if they were property that could
be disposed of (13).
As we can see, the judicial treatment of rape and the way this act is
viewed always tell us a lot about the gender and class relations
existing in societies. And no more in France than elsewhere, rape cannot
be a "settled matter", or one that can be resolved, by the supporters of
the patriarchal and capitalist system.
IN 1978, THE "RAPE TRIAL"
IN AIX-EN-PROVENCE
Demonstration in Aix-en-Provence during the 1978 trial.
Two young Belgian tourists, Araceli Castellano and Anne Tonglet, were
attacked by three men on the night of 20 to 21 August 1974, while they
were sleeping in a tent in the calanques of Marseille. They defended
themselves physically (injuring one of the men in the head), but were
beaten and raped for nearly five hours. However, the report of the
complaint they filed with the police suggests, in its wording, that they
were consenting - and their attackers claimed that they were. The
investigating judge only retained the "assault and battery" charge,
sending the trial to the Marseille criminal court. Anne and Araceli
contested her decision, and some feminists mobilized to support their
approach (other feminists highlighted the paradox of appealing to
"bourgeois justice" when it had been fought shortly before for its
repression of abortion). In 1975, Gisèle Halimi took charge of the case
and, the three attackers being finally charged with rape, the criminal
court declared itself incompetent to judge the case. The trial opened at
the Aix-en-Provence Assizes on May 2, 1978.
In the meantime, Araceli and Anne had been through an ordeal in Belgium:
one of them, who had become pregnant as a result of the rape, was only
able to have an abortion by finding a doctor willing to break the law
(abortion was illegal in that country at the time); the other, a
teacher, had been transferred at the request of her parents. They were
insulted at the courthouse doors, and the presiding judge questioned
them about their homosexuality ("lack of morality")... Gisèle Halimi
refused to hold the trial in camera and turned it into a platform
against rape and male domination.
One of the accused was sentenced to six years in prison for rape, the
other two to four years for attempted rape - gang rape was not included.
But the Aix-en-Provence trial, which was as political as it was
media-friendly, largely contributed to Parliament voting on 23 December
1980 for a new criminal definition of rape.
Vanina
Notes
1. Published by Seuil in 1998. On the cover: Alexandre Cabanel, Nymphe
Abducted by a Faun, 1860.
2. This "unnatural" act is punished by burning at the stake.
3. In Florence, the sexual initiation of the young bourgeois or
aristocrat was carried out by servants from the 15th century onwards,
and no longer by a visit to the public brothel.
4. Very few trials, however, concerned boys, or cases of incest - a
well-kept family secret.
5. A protest against the "question" and other specialities of the
executioners also appeared.
6. Divorce, introduced in 1792, was abolished in 1816 (until 1884).
7. In his major survey on the "physical and moral state" of factory
workers, the physician Louis-René Villermé denounced child labor in 1840
- which would be regulated by law the following year.
8. Children were also separated from adults in prisons. In Paris, the
Petite Roquette, opened in 1835, was reserved for them.
9. Previously very numerous in domestic service, women occupied 40% of
office jobs in 1900.
10. They currently represent 48% of the working population.
11. Pronatalist policies aimed, for example, at the end of a war, to
send them back to their homes to repopulate the nation.
12. 45% of marriages ended in divorce, 75% of divorces were at the
request of women.
13. See the rapes during the 2020-2022 war in Ethiopia and the
subsequent HIV epidemic in that country.
http://oclibertaire.lautre.net/spip.php?article4361
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