By Samira Allioui
Harassment, whether sexual, psychological or institutional, is a sensitive topic. In a previous case, L. and Others v. France, the European Court of Human Rights (ECtHR) has not failed to point out that domestic courts seek to determine the existence or absence of consent, while respecting the rights of the accused’s defence, in a context where the judge sometimes has little other evidence than the contradictory statements of each party (para. 206).
If in previous cases the ECtHR did not directly criticise the French legislative framework for a failure to meet positive obligations and did not dare to directly challenge the inadequacies of the obligation to incriminate, it took another approach in a recent judgment. In E.A. et Association européenne contre les violences faites aux femmes au travail v. France the ECtHR unanimously condemned France for the inadequacy of its criminal law in providing an inadequate protective legislative framework for victims of sexual violence and for the ineffective application of this law by the French judicial authorities.
This adds to recent rulings by the French Supreme Court on harassment in the workplace[1]. However, it is important to note here that France opposed the development of a 2023 an EU directive on violence against women intended to define rape in terms of lack of consent, to harmonise European legislation.
In E.A. et Association européenne contre les violences faites aux femmes au travail v. France, a French national complained of violations of the positive obligations arising from Articles 3 and 8 of the Convention. The plaintiff was employed as a pharmacy technician at Briey Hospital since March 2010, under a temporary contract with training obligations and reporting directly to Dr K.B., head pharmacist and vice-president of the medical committee. Dr K.B. exercised significant influence over her career prospects and the renewal of her contract, and she had suffered systematic sexual violence and psychological coercion from him.
The case concerned both the adequacy of the French legal framework in dealing with non-consensual sexual acts and the effectiveness of the national authorities’ response to allegations of sexual violence in the workplace. The ECtHR held that, while French criminal law criminalises rape and sexual assault, the fact that it relies on the demonstration of “violence, coercion, threats, or deception” without express reference to consent does not adequately protect victims, particularly in cases involving psychological coercion or blocking reactions, and creates legal uncertainty.
The ECtHR concluded that the national authorities had failed to conduct an effective investigation, excluding serious allegations of rape from their scope of inquiry and limiting prosecutions to accusations of violent behaviour and sexual harassment. In this regard, the domestic courts’ assessment of consent was found to be fundamentally flawed, failing to take into account the coercive environment, the power imbalance, and the victim’s psychological vulnerability. The ECtHR particularly condemned the use of a degrading “master-slave contract” as evidence of consent, which constituted secondary victimisation. More specifically, it found that the domestic proceedings had subjected the applicant to secondary victimisation through victim-blaming approaches that failed to protect her dignity. The notion that signing a degrading contract constituted general consent to future sexual acts was particularly problematic, as it reflected precisely the type of stereotypical reasoning that discourages victims from seeking justice.
Despite clear allegations of rape and sexual assault, the investigation was limited to accusations of violent behaviour and sexual harassment. The domestic courts ultimately acquitted Dr. K.B., with the Court of Appeal concluding that the applicant had consented to all sexual acts, relying primarily on the existence of the written contract and certain communications.
The ECtHR reaffirmed that States have a positive obligation, under Articles 3 and 8, to adopt adequate legal frameworks criminalising non-consensual sexual acts and to ensure their effective implementation through appropriate investigative and prosecution procedures (O’Keeffe v. Ireland [GC]).
However, in this case, the investigation itself was deficient in several respects. Key evidence, including electronic communications between the parties, was inadequately preserved and analysed. The late seizure of Dr. K.B.’s computer equipment led to the loss of data, while telephone records were never properly reviewed. These shortcomings in the investigation compromised the authorities’ ability to establish a complete factual picture.
The ECtHR found violations of Articles 3 and 8 concerning positive obligations, both substantive and procedural, and awarded the first applicant €20,000 for non-pecuniary damage. It recognised that French law has long interpreted provisions relating to rape and sexual assault with reference to consent, despite the absence of express legislative recognition. However, the Court stressed that the exclusive reliance on evidence of “violence, coercion, threats or deception” creates significant gaps in protection, particularly for victims subjected to psychological coercion or paralytic reactions.
The ECtHR noted the growing international consensus in favour of expressly recognising consent as a central element in the definition of sexual offences, as reflected in the Istanbul Convention. However, the discretion to incorporate any specific language regarding consent into legislation is left to the parties. While recognising France’s margin of appreciation in legislative formulation, it emphasised that effective protection requires clear legal frameworks that recognise the reality of sexual violence, including through coercive control and exploitation of vulnerability.
In French law, rape is defined as penetration imposed by “violence, coercion, threat, or surprise.” The French parliament has begun debating a bill that would define rape as “any non-consensual sexual act.” This bill aims to amend this wording, defining rape as “any non-consensual sexual act” and consent as “free and informed, specific, prior, and revocable”, adding that it “cannot be inferred from the victim’s silence or lack of reaction alone”. To date, consent has still not been included in the legal definition of rape. The Gisèle Pélicot case has recently reignited the debate on how sexual violence is prosecuted in France and led to pressure to include consent in the legal definition of rape. This would represent a step forward.
Indeed, this already exists in Sweden, for example, where it would no longer be up to the victim to prove coercion, but rather up to the defendants to demonstrate that the sexual intercourse was consensual.
However, in France, while the vote showed emerging consensus, some lawmakers and activists expressed concerns about the amendment, critics fear that the amendment would encourage investigators to focus excessively on the victim’s behaviour. The E.A. et Association européenne contre les violences faites aux femmes au travail v. France case has revealed, once again, the limitations of France’s force-based rape law and the risks of relying on outdated resistance measures rather than explicit consent.
Without a clear, consent-based definition, victims who are unconscious, incapacitated, or otherwise unable to consent will continue to face barriers to accessing justice. France must reform its penal code to incorporate explicit and voluntary consent and align its legal framework with evolving European standards on consent and human rights protections. National outrage erupted following the verdict in the Gisèle Pélicot case, and legislative changes are needed to ensure that a victim’s silence, particularly that caused by involuntary incapacity, fear, or unconsciousness, is never misinterpreted as consent. France now faces a crucial opportunity to fundamentally revise its rape law to reflect contemporary standards on rape, bring it into line with European legal norms, and restore public confidence in the justice system.
Samira Allioui is a legal researcher currently based in Norway, a teaching fellow and trial attorney. Her research interests focus on procedural rules of international courts, international procedural law as well as international civil procedure. She began her career in legal academia as a Law Teaching Fellow and Research Fellow with the Centre d’études européennes et internationales of the University of Strasbourg.
[1] Court of Cassation, Criminal Division, 21 January 2025, no. 22-87145
Court of Cassation, Social Division, 8 January 2025, no. 23-19996 ; Court of Cassation, Social Division, 19 April 2023, no. 21-21053 ; Court of Cassation, Social Division, 8 January 2025, no. 23-12574