A comparative perspective on the Pélicot case

Abstract

The highly mediatised Pélicot trial has cast a sharp light on sexual violence in private spaces and prompted loud calls for reform in France. This article examines two distinctive features of the French substantive and procedural framework. The first relates to inadequacies in the definition of rape, with the current debate in France echoing in some respects the dialogue in Australia over the past three decades. The second concerns what may seem like procedural peculiarities in the case but are in fact the product of reforms that have parallels in several Australian jurisdictions.

On 19 December 2024, following a public and widely reported trial, Dominique Pélicot was convicted of aggravated rape by a French criminal court for having repeatedly drugged and abused his then wife Gisèle Pélicot and recruited dozens of other men online to rape her over a period of almost a decade. He received the maximum sentence of 20 years’ imprisonment, with a non-parole period of 14 years. The 50 co-accused also on trial were all convicted of various offences, including aggravated rape, attempted rape and sexual assault, and received sentences ranging from three to 15 years’ imprisonment. ¹ Although Dominique Pélicot himself has not appealed his conviction, 17 of his co-accused have and the appellate proceedings are expected to take place in late 2025.

This landmark trial challenged stereotypical notions about rape and cast light on victimisation in private spaces and relationships. Much has been written about the ordeal of survivors of sexual assault as well as Gisèle Pélicot’s decision to have the trial conducted publicly, explicitly stating that ‘shame must change sides’. ² Less has been reported about the broader legal context in which the trial occurred and, in particular, certain deficiencies in the French legal definition of rape, which, unlike a number of other jurisdictions (including several Australian states and territories), is yet to fully grapple with the role of consent.

In this article, the Pélicot case serves as a starting point to explore two salient features of the legal and procedural framework for the criminalisation of sexual offences in France and draw parallels with developments in Australia. First, the discussion will focus on the legal definition of rape, in which the complainant’s absence of consent is examined through the lens of the situational factors of ‘violence, coercion, threat or surprise’, ³ rather than as an independent consideration. Recent calls for reform in France have prompted a fierce debate which echoes some of the discourse around this area of law that has taken place in Australia over the past three decades. Second, the article will outline a number of significant procedural characteristics of the French criminal process that emerged from the Pélicot trial, and which may be perceived as oddities from an Australian legal perspective. In particular, while the Pélicot trial at first instance was heard before a panel of judges, the forthcoming appeal proceedings will take the form of a new trial before a jury. The trial without a jury was introduced in recent reforms designed to enhance the efficiency of the criminal justice system and has some interesting parallels with the progressive introduction of judge-alone trials in the majority of Australian criminal jurisdictions.

It is beyond the scope of this article to provide a comprehensive comparative analysis of these matters. Rather, the purpose is to explore particular aspects of the Pélicot case in the broader context of the French legal system and offer a lens into how similar questions have been approached in Australia.

The place of consent in the criminalisation of sexual violence

The legal conceptualisation of sexual violence in the French Criminal Code is centred on circumstances that are extraneous to the concept of consent. Rape is defined as any intentional act of sexual penetration committed by ‘violence, coercion, threat or surprise’. ⁴ Sexual assault is defined in similar terms. ⁵ These provisions, deriving from 19th century jurisprudence, ⁶ are silent on the issue of consent. The absence of consent, in itself, does not suffice to establish the offence; it can only be proven by reference to an act of violence, coercion, threat or surprise by the defendant. Legislation adopted in 2021 introduced an exception in relation to children aged 15 or under where the age difference with the defendant is greater than five years; in such a case, the absence of consent is now presumed. ⁷

The implication of this characterisation is that a complainant’s actual consent and the attendant knowledge by the defendant of the absence of consent are not explicit and primary legal and forensic considerations. Rather, the absence of consent is derived situationally from the presence of violence, coercion, threat or surprise. While circumstances of violence, coercion, threat or surprise, by nature, reveal a lack of consent, the opposite is not necessarily true and their absence does not equate to consent. This approach to criminalising sexual violence is based on, and reinforces, the longstanding myth that a person who does not consent to sexual activity will actively protest and resist, ⁸ a misconception now well recognised in Australia. ⁹ It is not difficult to conceive of cases falling outside these parameters, including those involving the sidération (freeze response) of a complainant or the perpetration of complex or hidden patterns of sexual violence by an acquaintance or intimate partner. In these cases, the French legislative definition effectively presumes consent, creating ‘a legal and cultural fiction that spares the initiator of a sexual contact from having to satisfy themselves of the effective consent … of the other’. ¹⁰

The effect of this definition has been somewhat mitigated in relation to what are referred to as cases of soumission chimique (drug-facilitated submission). This was starkly illustrated in the Pélicot case, where multiple defendants argued that, despite being faced with an unconscious victim, they had been tricked by the victim’s husband into believing that they were taking part in a game orchestrated by the couple. ¹¹ On this basis, they claimed, the sexual activity could not be established to have involved any ‘surprise’ (or, for that matter, violence, coercion or threat) within the meaning of the definition. The disturbing implication of this argument is that the consent of a drugged and unconscious woman could legitimately be conveyed by her husband on her behalf. This line of defence failed, as the term ‘surprise’ has been interpreted to include circumstances in which the victim is asleep, semi-conscious or significantly affected by drugs or alcohol. ¹² Further, the administration of substances to the victim, without their knowledge and ‘with a view to alter their discernment or control’ is legislatively recognised as aggravating the offence of rape, as it did in this case. ¹³ It reveals, however, perceived loopholes for defendants as a result of only recognising the absence of consent through its more violent manifestations.

Although the current definition of rape was able to address the issue of consent as it specifically arose in the Pélicot case, the conservatism of the legislative framework is clear and emerged as a significant factor in the conversation around the necessity for reform. Rather than embedding consent as an expression of individual freedom and sexual autonomy, the French criminal law focuses on regulating the means by which consent is (not) obtained. This patriarchal approach to what is predominantly gendered violence has been described as le droit de l’abus (the regulation of excess): it is the recourse to means traditionally viewed as socially excessive that is criminalised – being violence, coercion, threat or surprise. ¹⁴ The difficulty of course is that other more subtle or structural forms of domination may not be captured by these four elements. As Le Magueresse notes, it enables in particular the continued imposition of undesired conduct on women ‘in the name of seduction or conquest strategy’ ¹⁵ and maintains the heteronormative and ‘stereotypical view of the[ir] sexual availability’. ¹⁶ Placing the absence of consent at the heart of the criminalisation of sexual violence in France therefore requires a ‘social rupture’ and a reconceptualisation of sexual violence as an infringement on individual, and particularly women’s, autonomy. ¹⁷

This debate echoes the broader ‘discursive social shift towards a standard of consent based on free and active agreement to sex’ that has led to reforms in many Western jurisdictions, including Australia. ¹⁸ Such reform in the state of Victoria saw the introduction of the absence of consent, defined as free agreement, as a material element of rape in 1991. ¹⁹ This marked a transition toward a communicative model of consent, departing from the previous view that the absence of consent would necessarily be demonstrated by ‘evidence of threats, violence, injury and strong resistance’. ²⁰ An illustrative set of circumstances deemed to vitiate consent was gradually incorporated in the legislation, including where a person submits because of force or fear of force, is unconscious or incapable of consenting due to the impact of drugs or alcohol, or ‘does not say or do anything to indicate consent’. ²¹ In 2015, the fault element, until then characterised by the defendant’s subjective (even if unreasonably mistaken) belief in consent, was amended toward a more objective standard and is now assessed by reference to the reasonableness of the belief. ²² Over time, these changes were also accompanied by the adoption of a number of ‘corrective jury directions’ with a view to combating common assumptions about contexts in which sexual violence may occur and expectations about victims’ responses. ²³

Despite these successive reforms, the focus on consent has been criticised for directing the forensic attention too sharply onto the complainant’s conduct ²⁴ and the narratives about force, resistance and the interplay between the two, are long-standing and enduring. Tracing back to the origins of the regulation of rape, designed to protect women’s ‘virginity and chastity – to which male status was attached’, ²⁵ these narratives have persisted in modern criminal trials and contribute to the continuing secondary traumatisation of complainants. ²⁶

More recently, further reforms in Victoria have sought to strengthen what is referred to as an affirmative consent model, ²⁷ with a view to shifting the focus away from the complainant’s conduct and onto the defendant and the steps the defendant took to satisfy themself of the complainant’s consent. This approach ‘redefines consent in positive terms; consent is something that one gives actively to another’. ²⁸ This is translated in the fault element of the offence, which now explicitly deems a defendant’s belief in consent unreasonable if they have not done or said anything to ascertain the complainant’s consent. ²⁹ Although the practical effect of these reforms remains to be seen, this attention to active steps taken by a defendant may shepherd the forensic narrative away from myths of force and resistance.

There have been growing calls for similar reform in France, where a Bill was introduced to that effect in February 2024 ³⁰ and a Parliamentary Inquiry Report submitted in January 2025. ³¹ The latter recommends the inclusion of lack of consent in the definition of rape and sexual assault, in addition to, rather than in the place of, the four listed elements of violence, coercion, threat and surprise. It also calls for the inclusion of explicit consent-negating circumstances in the definition. ³² This approach is designed to remedy deficiencies in the current framework where

consent is often instrumentalized by perpetrators (‘I couldn’t know’, ‘She didn’t say anything’), which fuels stereotypes on rape, complicates the reporting process and leads in many cases to a decision not to prosecute, to the detriment of victims. ³³

As occurred in Australia, critics in France are raising concerns about a potential reversal of the burden of proof, denouncing what they call a presumption of culpability founded on the complainant’s subjective perception. ³⁴ However, the burden to establish the absence of consent (and the attendant fault element – the intentionalité of the defendant) as material elements of the offence remains with the prosecution, as it currently does in relation to the proof of violence, coercion, threat or surprise. The inquisitorial nature of the French legal system also means that the investigation falls on a dedicated ‘investigative judge’, who is required to gather both inculpatory and exculpatory evidence.

On a related point, Professor Saint-Pau warns that the absence of consent cannot be objectively established and reliance will continue to be placed on the existing circumstances of violence, threat, coercion or surprise. We are therefore, he argues, ‘[b]ack to the starting gate’. ³⁵ This view appears to not only restrictively conflate consent with the absence of violence, threat, coercion or surprise but also assumes that these can only be proved through ‘objective’ corroboration. The inherently private nature of most sexual offences means that it is not uncommon for the only available evidence to be that given by the complainant and the defendant. In Victoria, the law has come to reflect this reality by abandoning the requirement for corroboration of a complainant’s account. ³⁶ It may be that the French legal system presents an additional layer of complexity in this respect. Indeed, as in many civil law systems, the defendant and the complainant are both treated as parties to the criminal trial and conferred associated rights; accordingly, they are not formal witnesses and do not take an oath before giving evidence as they do in Victoria. ³⁷ Although the court is not legally precluded from relying on their accounts, this may raise questions about how the incorporation of consent in the legal definition of rape will manifest practically in a system that places less formal expectation on the words of those intimately involved.

A trial before a panel of judges and an appeal before a jury

One of the innovations of the Pélicot trial was that it was heard without a jury before the new Cour Criminelle Départementale (CCD). In contrast, the forthcoming appeal will be heard with a jury before a Cour d’Assises. The product of a suite of recent reforms that have altered the criminal process in profound ways, this may seem counterintuitive to the adversarial lawyer.

Until 2023, trials for rape and other serious criminal offences fell under the jurisdiction of the highest criminal jurisdiction, the Cour d’Assises. Formally created in 1811, the Cour d’Assises is imbued with revolutionary ideas of the jury as ‘the judicial symbol of the Nation’ and a manifestation of the re-appropriation by citizens of the power to judge their peers. ³⁸ Indeed, the principle of a criminal trial by jury was adopted in the midst of the French revolution in 1790. ³⁹ For almost two centuries, the sovereignty of the jury was reflected in the absence of any appeal from verdicts of the Cour d’Assises, which contrasted with the position in relation to lower criminal courts sitting without a jury. It was only in 2000 that an appeal process was introduced, under the normative pressure of the fair trial rights discourse and multiple condemnations of France by the European Court of Human Rights. ⁴⁰

This process differs in significant respects from that in Australia. First, appeal is open as of right to both a convicted person and the prosecution, the latter of whom can challenge an acquittal. ⁴¹ Second, an appeal from the verdict of the Cour d’Assises essentially leads to a de novo hearing before a new jury (albeit a larger one). ⁴² This contrasts sharply with the Australian process where, in relation to indictable offences, the court of appeal serves as a review jurisdiction that is only accessible through a leave process ⁴³ and gives significant deference to the factual determinations made at trial by the jury. ⁴⁴ In practical terms, this means that the 17 people who have appealed against their convictions in the Pélicot matter will undergo a new trial, requiring Gisèle Pélicot to participate and be questioned once again in the proceedings.

The introduction of a right to appeal verdicts of the Cour d’Assises has had significant practical implications on the backlog of cases and congestion in the jurisdiction, leading to excessive delays. It has also exacerbated the trend toward the legal recharacterisation of serious offences, including rape, with a view to having them heard by lower courts, ⁴⁵ in a process akin to that which applies to indictable offences triable summarily in Australia. ⁴⁶ The CCD, constituted by five judges and sitting without a jury, was established in 2023 to address both these concerns. ⁴⁷ It essentially assumes the first instance jurisdiction of the Cour d’Assises in relation to all intermediate offences punishable by 15–20 years’ imprisonment (except in cases of recidivism), ⁴⁸ and therefore primarily hears matters involving allegations of rape, injury causing death and armed robbery. ⁴⁹ This reform is reminiscent to some extent of the introduction in Australia over the past three decades of judge-alone trials, now available in a majority of jurisdictions, although not in Victoria. ⁵⁰ Both legal systems are seeing a trend away from jury trials. ⁵¹

However, there is significant variation in the circumstances in which trials without a jury are ordered. The referral to the CCD in France is automatic for all relevant offences. In contrast, judge-alone trials in Australia are allowed on a case-by-case basis. The defendant must generally consent to a trial without a jury and the court must evaluate whether this is in the interests of justice. ⁵² The court takes into account a broad array of considerations including the efficient conduct and duration of the trial, its complexity, the significant prejudicial pre-trial publicity that a defendant may have received and whether the case enlivens issues involving community standards of reasonableness, which would generally be viewed as better determined by a jury. ⁵³ The approach in France is fundamentally different and does not involve a case by case assessment; in fact, the equal treatment of all defendants charged with similar offences was an essential ground upon which a constitutional challenge to the CCD was dismissed. ⁵⁴

In what may seem like an oddity, the appeals filed by 17 of the 51 convicted people in the Pélicot case will be heard together before an appellate Cour d’Assises, constituted of three professional judges and nine jurors, and the issues raised by the grounds of appeal will be heard de novo. ⁵⁵ This is a remnant of the sanctity of the jury which is ultimately responsible for the final determination of disputed facts. Unlike in Australia, however, the judges sit, deliberate, issue their verdict and impose any sentence alongside the jurors; together, they form the court. ⁵⁶ This is visually represented in the courtroom, with the jurors physically sitting with the judges at the bench ⁵⁷ and permitted to seek leave from the presiding judge to question the accused and witnesses. ⁵⁸ This approach has the benefit of organically enabling a measure of judicial scrutiny over jury deliberations as judges are able to clarify issues and guide the discussion in anticipation for the drafting of written reasons. It also effectively bypasses the need for complex formal jury directions, which are commonly the subject of appeals in Australia. ⁵⁹ On the other hand, this échevinage (the presence of both judges and jurors) is also viewed as a means to guard against jurors’ potential effusions or excesses, giving the proceedings an air of ‘legitimacy under control’. ⁶⁰

A ‘mixed jury’ model has previously been envisioned in Australia in the context of sentencing as a way to enhance public confidence in the administration of justice and in sentencing decisions most particularly. In 2005, an address by former Chief Justice Spigelman suggesting a consultative role for the jury in sentencing, prompted an inquiry by the New South Wales (NSW) Law Reform Commission. ⁶¹ The Commission rejected the proposition on the basis that the involvement of jurors in sentencing may compromise the integrity of the criminal justice system and ‘confuse or distract jurors from their essential and significant role as finders of fact’. ⁶² Significantly, the Commission was concerned about the unfair burden that such a complex and demanding role would have on jurors. ⁶³ Since then, the idea has not gained any real traction, which is likely a reflection of the markedly entrenched roles conferred on the judge and the jury in adversarial criminal trials.

Conclusion

The Pélicot trial has received worldwide attention and been cast as a catalyst for change. It has added fuel to a revival of the debate about the place of consent in the French legal framework for the criminalisation of sexual offences, evoking a similar and ongoing discourse in Australia about how to address the impunity gap that persists in relation to this form of criminality. The Pélicot trial has also served as a visible representation of recent procedural reforms, signalling a broader trend away from jury trials that is mirrored in many Australian jurisdictions. The forthcoming appeal, however, will be heard and determined by a jury, accompanied by professional judges. This appellate process may therefore provide a glimpse of ordinary citizens’ views on this extraordinary case.