RAPE & THE LAW FOCUS ON FRANCE FOCUS
In this section, we reproduce three pieces from France, with special emphasis on the law, the way in which it treats women, and the way in which women have responded to the heavy penalties for rapists.
The first piece consists of extracts taken from the Dossier sur le v i o l , prepared by the Committee on Rape of the organisation Choisir. Choisir is a national organisation of women which began in the early 1970's under the inspiration of Gisele Halimi, a lawyer, to fight for free, legal abortion and contraception. Gisele Halimi herself has fought in court for many women who were accused under the pre-1975 law of having illegal abortions (the 1975 law made abortion legal up to 12 weeks, but it comes up for revision in 1980).
More recently, Choisir has become involved in the fight against rape, and in supporting women who take rapists to court. The most publicized of these cases was that of Anne
Tonglet and Araceli Castellano, two Belgian women who were raped by three men near Marseilles, France, in 1974. The details of their story, given in Crimes Against Women
by Diana Russell (see resources section in this Bulletin), are a damning example of how the law treats raped women:
"The next day we appeared before the magistrate -
an appalling woman, cold, cutting and aggressive. The '•• questions she asked were typical of the sort of trap laidfor women. For example, "Do you want to live?" she asked, "Do you value your life?". We were silent, "Come on, I'm in a hurry, I have no time to waste. Yes or no?" She demanded. "Yes, I want to live, I value my life", we both said. She took this simple assertion as evidence of consent. To her it meant that we would rather submit to physical outrage than expose our Jives to risk. Furthermore the fact that we were homosexual was interpreted by the court as a provocation, and as yet another insult to the manhood of the three men.
..."In September 1975, one year after we were raped, the reduction of the charge of rape to one of assault and battery meant that we appeared in front of a court
of summary jurisdiction. We claimed that the court was not competent to try our case. Our women lawyers refused to plead, since the fact that we had been raped
was not recognised. Three weeks later, the court, presided over by a woman, declared itself not competent, and referred our case to an Assize Court. This was a
great victory, as this sort of thing hardly ever happens... These victories are thanks to the solidarity of women from many countries in Europe and elsewhere who
have sent telegrams, organised petitions, and been present in court at all our trials up to now. Without these women, without their support, we could never
have distanced ourselves from this rape enough to be able to talk to you about it now".
Their case finally came up in the Assize Court in 1978. They were represented by Gisele Halimi, and with the enormous support from women all over the world, their case was won. One of the men was given a 6-year prison sentence, and the other two were given four years' detention. Yet the court case itself was extremely unpleasant, with insults being hurled at women outside the courtroom, and the lawyers for the defense making constant digs at Anne and Araceli. *
The whole issue, however, raised the question of whether we should demand prison sentences for rapists, or whether the fight against rape should not rather also be directed against the patriarchal penal system. The second and third pieces, therefore, present the two sides of the debate. They are taken from le Nouvel Observateur, France. All translation from the French by ISIS.
. A full report of the court case and the outcome, with commentaries, is published in the magazine Choisir: la cause des femmes, no. 33, June 1978. Available from:
102, rue St. Dominique, 7507 Paris, France, price FF5.00. The magazine is monthly, in French.
HISTORICAL DEFINITION OF RAPE
The first known definition of rape subsumes it under theft of a man's property, i.e. of the father if the women was a virgin, or the husband if she was not. History has never defined rape per se — as sexual aggression against a woman, and has simply defended the property or "goods" of men. According to Hammourabi law, for example, a man who raped a betrothed virgin could be killed. If he raped a married woman, this was considered adultery and both of them were thrown in the river. The Hebrews stoned people in such cases. Later, still in Hebrew law, someone who raped a virgin was liable to pay 50 pieces of silver to her father, in compensation for the loss
of bride price.
The pattern which emerges shows that the more the law considered rape as destruction or theft of property, the more serious was the punishment of the rapist. To illustrate
this: in England during the 10th century, a man raping a virgin was killed and his animals multilated; during the time of William the Conqueror, a rapist was castrated and has his eyes put out. In the 13th century, the manorial courts broadened the concept of rape to include — at least in theory — "mothers of families, religious people, widows, concubines and even prostitutes", but it seems the law was almost never applied in these cases
At the end of the 13th century rape of a married woman was considered the same as rape of a virgin — punishable by 2 years' imprisonment and a fine, and later by the death penalty. At the same time it was declared that rape was impossible within marriage. Nonetheless rape became a question of public and State security, punishable under the Crown
If history has had a restrictive view of rape, the law today hardly deals better with it :the notion that rape has to do with stealing from another man is still dominant. In fact
rape is defined essentially as "the forced penetration by a man's penis of the victim's vagina" — that is, implying the possibility of illegitimate pregnancy. This definition excludes not only all other forms of sexual violence (sodomy, fellatio, penetration of the vagina by foreign bodies, etc.), but also rape within marriage. The latter is still not recognised, which underlines the clear relationship between rape and the defiling of a man's property
In France today, rape is considered an attack on decency, and therefore a crime. Yet it is the only crime for which the accused is allowed attenuating circumstances which
depend on the victim's personality, it is also the only crime for which the victim must prove her innocence, i.e. not having consented; and the best way for her to prove this is to show she was wounded, or better still killed! The law tends to treat the victim as the accused.
This is why so few women have dared to bring a rape case to trial until now. They are either scared of facing the police and the law, or they are pressured by society not to disclose this "shameful" (for them) event. Women have been systematically accused or suspected of having provoked the aggression.
Since 1975 women, especially in France, have been fighting for rape to be judged as a crime and recognised as a criminal attack against the dignity and liberty of all human beings.
As feminists we wanta redefinition of rape to include all sexual violence, whether or not it involves coitus. Violence implies that the victim does not consent. Thus rape is possible within marriage.
In this way, we want to show that the dignity of all human beings must be respected and that women whose dignity and liberty are attacked through rape have the right to be
treated as human beings. They have the right to be treated under the law, not as guilty parties or as minors because they don't behave according to the roles which men assign them (going out alone at night, hitch-hiking, etc.) but as adults responsible for their choices and actions.
Some statistics about rape in France
In 1975 there were 1,589 charges of rape in France. Given that as few as one in fifteen cases of rape are actually reported, this means that there are probably about 20,000
cases of rape committed in France each year. Of the rapists brought to court in 1973, 291 were convicted, and 218 were convicted in 1974.
The cases of rape increased by 2.1% from 1973 to 1974, and by 3.3% from 1974 to 1975. For the whole period 1963- 1973 they increased by 55.8% .
In 1974 a police census shows that of the 1469 people charged with rape, 14.5% were minors, and 28.4% were foreigners; but it must be taken into account that it is easier to bring charges against a foreign worker than against a neighbour. In addition there are considerably less foreigners brought to justice according to the figures of the Assise court: in 1972, of the 289 convicted rapists, 251 were Frenchmen, i.e. 86.9% ; 54.3% were married, 40.8% had no children, and 30.1% had many children (between four and nine). The kinds of people convicted were ;
- 69.8% workers
- 14.7% unemployed
- 7.3% farmers/farm labourers
- 6.6% office workers
]
- 0.8% executives
- 0.4% professional workers
- 0.4% teachers
Of the 289 convicted, 26.3% were previous rapists, and 85.1% of the cases concerned rape of minors.
According to surveys carried out by iVIenie Gregoire in 1973
and 1976, more and more women are reporting having been raped (5% in 1973 and 8% in 1976). Seventy percent of the women who wrote that they had been raped, had been raped by a member of their family (father, father-in-law, brother).
Forty percent of incest cases were committed by people with elementary or minimal secondary education, 40% by people with end-of-school certificates, and 20% by people with higher education.
The areas where rape took place were:
- 15% in large cities
- 20% in suburbs
- 30% in small towns
- 35% in the countryside.
Fighting against rape
In the short term, the following measures could be taken:
- a new legal definition of rape (see section on the historical definition of rape);
- a change in the attitude of the law and the police by, for example, abolishing questionaires about the private life of the victim, by publishing a conviction notice at the rapist's place of work, by publicizing rape trials unless the raped woman doesn't want this...).
- restrictions on publicity and the media so that images offensive to women's dignity are censored (as with racist images).
- helping women to become physically more sure of themselves by teaching self-defense from an early age. In the long term, it is necessary to:
- radically change the education system so that sexist stereotypes are no longer transmitted, but that all individuals may develop according to their own personality.
- abolish in practice the distinction between "female" jobs and "male" jobs.
- undertake all possible measures which will encourage women's economic independence (professional, non-sexist training which leads to employment, equal pay, collective daycare centres, etc.), and bring about the total sharing of roles and tasks within the family.
All these measures, which are by no means exhaustive, will help to bring recognition to women's right to be autonomous and whole human beings. We believe that once this right is recognised both by society and in practice, the phenomenon of rape will disappear.
RAPE: A CULTURAL CRIME
Gisele Halimi
This piece is extracted from an article in le Nouvel Observateur, Paris, No. 706, 22-28 l\/lay, 1978.
Rape is the worst of crimes against women. Since May 1968 women have become realists. They demand the impossible, starting with the right to control their own bodies. Contraception, abortion, and the right to choose whom they love. Love? Y'es, love. Those feminists who equate forced penetration of a vagina with a broken arm by saying, "make the rapist pay, he should pay damages and expenses", just as though it were a car accident, make me furious. A vagina which is marketed and paid for is prostitution. But what is a vagina which is forced and paid for? Rape is also a crime against the relationship to another person, against "the way the heart breathes" and "the spirit moves" with the body, as Cyrano would have said if I had quoted him at the Assises (in Aix-en- Provence), and if the president of the court has deigned to hear me. All of our witnesses were reduced to silence by a president who continually made rude interruptions. Florence d'Harcourt was just able to make a speech. Gisele Moreau, a Communist Deputy (to Parliament) had hardly opened her mouth to speak of "women's great fear" and to give her solidarity to Anne and Araceli, when she was asked to leave the courtroom. For Arlette Laguiller, clutching the bar, trembling and making us tremble with emotion, the guards were called. Rape - the total crime, as Pierre Emmanuel described it — deserved a much wider debate than the deliberately restricted one given it in the Assise Court. Why rape? How rape? Is repression the only solution to the crime? Should we not be questioning our whole education system.
and society through what I call a "cultural crime" rather than a "sexual crime"? (Since Freud, and even before him, it is known that the brain is the most important male sex organ).
'The question will not be asked!" The trial will remain an expiatory ceremony; justice, a repressive machine; the judges, handers-out of sentences (or acquittals).
The conflict between women and justice is total. Yet we will continue to turn to this justice, bourgeois and imperfect as it is, for it is the only one we have. Is this tantamount to turning towards repression? Objectively-speaking, yes. The very process of civilians bringing charges, sets a repressive machinery in motion. This is a judical fact we can do nothing about. But what is the alternative? To accuse raped women a second time, this time with being repressive? This is just a new form of violence for which certain feminists feel guilty on behalf of their victims. First there is shame, then silence, then fear. Thanks to their own courage, to Choisir and to women's solidarity, raped women have come out of a kind of coma. But what about justice? "I am fascinated by this paradox", wrote Frangoise Mallet-Joris about the trial in A i x . " O n the one hand
you have the misogynists who will always believe a woman is at least partially responsible in a rape case, and on the other hand so-called progressive people are claiming that women are also responsible for the repressive nature of the law to which they are appealing. So the raped woman has no way out. She is the primary cause both of the rape and of the verdict..."
People who say we should not bring charges against migrant workers are simply confusing the issue politically, unless there is a personal choice not to bring charges. First of all, it is wrong to put migrant workers in the middle of the debate about rape, since they are rarely rapists. In France the great majority of rapists are ordinary Frenchmen. But, migrant worker or any other worker, the rapist is a rapist. Politically speaking, he is no longer the oppressed person demanding the social justice and changed society which true feminists are also demanding
The strength of feminism is that it is fighting to create new relationships between men and women, by destroying not only economic exploitation, but also male-female domination. Otherwise there would be no point in being a feminist — we could simply all belong to unions. Don't let's fool ourselves: the question of punishment for rapists would simply not arise if all convicted rapists came from the upper classes. The struggle against rape begins by the struggle against all rapists.
If we were talking about preventing police brutality, accidents at work, or racism, the discussion would be very different. Leftist-feminists have fallen into a trap. The question of punishment for rape cannot be raised by itself, outside the issue of punishment as a whole, because this is precisely the issue. The recourse to justice is pathetically necessary for raped women, as is conviction of the rapist. Anne and Araceli • said this very clearly, as do all raped women. And what else is there to do? Be silent? Or encourage private justice in the form of vigilante committees or brigades of women who go about castrating or killing rapists (as some women's groups in the USA have proposed doing)? Don't we have the right to reply that there is no final answer to this question?
Rape is a question of culture, but surely the punishment of rape is a question of civilisation?
...I see only one line of action, which must be continuous and will take many forms. We must force society to examine itself, by changing our culture and by radically transforming attitudes. "Laws cannot make people do what they are not already prepared to do by custom", said Montesquieu. We must fight so that words, images, books, education, schools, everything, show that rape is outlawed.
IMPRISONMENT FOR RAPE?
Translated from an article in Le Nouvel Observateur, Paris, No. 707, 29 May - 8 June, 1978.
Josyane Moutet, Colette Auger, Monique Antoine
Imprisonment can only make those who suffer it feel more vindictive. It will not diminish the number of rapists
We feel obliged to come into the debate about rape in order to clarify our point of view, so that it is not distorted
When Gisele Halimi asked us several weeks ago to come to a meeting of "feminist lawyers", we declined, telling her that we didn't think it was appropriate since so many women are doing things about rape outside the limelight of the recent rape trials. Women are writing, making films, demonstrating and holding discussions, creating art, and in fact living out their revolt in many ways. These women come from all social milieux, and are becoming more and more numerous. A l l these expressions are necessary, and nobody — and certainly not us — should claim to have a monopoly, or "the right l i n e " f or combatting rape.
Since the beginning we have thought it important to deal with the law. But to say that only a "radical change in attitudes will "prevent" rape is not enough. We must try to clarify what the means are for changing attitudes, and we must especially question imprisonment as a solution to the horrors suffered by women who are raped.
It must be emphasized that justice is done in the name of fathers and husbands by judges who are protecting "their" women by giving prison sentences. Women should not feel reassured by this judicial system: they are being dealt with by a patriarchal law.
This analysis does not denounce rape as a crime against women, nor does it question recourse to justice as a consciousness- raising tool or even as a method of struggle. A judicial tribunal can be used for consciousness-raising. But imprisonment will not reduce the number of rape cases. This is why we reject open public trials which are more of a spectacle than a debate.
The women's struggle has shown that the means are at least as important as the end. Surely it's necessary to limit certain actions when we know the limited effectiveness of these actions? Rather than passively allowing the machinery of justice to profit from raped women's great need of it by imposing prison sentences.
Thus, one of us felt compelled to impose her own limits when confronted by rapists who were migrant workers: "I know that the migrant worker is not very often a rapist, and
that it is only the judicial system which points the finger at such a person in the punishment it metes out. But as a lawyer faced with this problem, I can never forget what the system does everyday to migrant workers — blacks and arabs — in a foreign country".
If imprisonment is not a deterrent for every crime, then it never is. There are no exceptions, not even for rapists.
Women today want to throw off the restrictions which history has put on them. But even if in our "civilised" countries today when these restrictions cannot be likened to a prison, there are still many women who feel strongly that we must reject any kind of repression, especially, prison, as an exemplary punishment.
For us, adopting this legal stance in the midst of the fight against rape is very difficult. By asking for suspended sentences dependent on good behaviour (which is provided for under the penal code), we are refusing the notion that seriousness of a crime carries with it a prison sentence. In this way we want to denounce both rape as a crime, and the inadmissability of a legal system — which we did not construct — being the only body responsible for meting out prison sentences. Is this what Gisele Halimi calls an attitude of being guilty? Quite the contrary, raped women are not guilty since prison sentences are chosen only by judges.
We believe it should be possible to act within the law (since we reject private police forces, vigilantes and personal revenge) to break down the symbols of repression: imprisonment and fines. It must be possible to use the lesser of the two evils — money, even if we have to question what this means for women — to help reduce the greater evil — prison.
We must then enter into a fundamental political debate concerning the respect of all life-giving activity which includes sexuality, and the rejection of all violence including sexual violence. Our common aim as women is to take control over our own bodies so that we are no longer sex-objects and so that our sexuality can be expressed in terms of mutual exchange and not violence.
If we accept the institutional repression of this patriarchal society which itself is founded on violence, we can never question that society or its violence. Repression by imprisonment only creates fear, and adds fuel to the fire of violence. And hatred will never lead to respect for women and their sexuality. As we saw during the trial at Aix - men outside spat in our faces. The repression which has been used since the beginning of the campaign against rape, the long prison sentences, have simply led to an increasing contempt for women, their increased vulnerability and therefore an increased need to have them protected. It is important for women to have recourse to justice in order to come out of their ghetto of silence, but at the same time it is indispensable to monitor the function and role of the judicial system. If there is no analysis, no questioning, and no struggling to change such a system, it will contribute to destroying our aim which is to fundamentally question our whole society.
Why should anyone feel "furious" by the expression of different points of view? On the contrary, let's have no more monopolies on struggles, and let's have constructive criticism rather than demeaning punishments which echo the history and norms of men.
FEMINIST OFFENSIVE AGAINST RAPE IN ITALY
Feminists in Italy are preparing a new campaign against rape which includes the collection of 50,000 signatures needed to present a new law on rape. The new law would combine the existing laws on rape and lewdness into one and make any sexual assault on a woman against her will a crime, including assault by a woman's husband. The new law would provide for immediate trials open to the public (unless the victim requests otherwise) which would permit the presence of the women's movement at the trials. The law would also permit the women's movement to constitute itself plaintiff in the case. Questions about the woman's personal life and sexual behaviour would not be allowed. The law would abolish the old Italian legislation which still refers to "crimes of honor". Part of the campaign is to find means of self-financing the costs involved in collecting and authenticating the signatures. The new law has been collectively designed and discussed by the women's movement in Italy.
Although some political parties are considering introducing new legislation on rape, Italian feminists strongly feel that the discussions which will be generated all over the country during the collection of signatures is a very important aspect of bringing about change.