The European Court of Human Rights (ECHR) ruled on Thursday that France had violated the European Convention on Human Rights in a case involving a pharmacist accused of forcing a colleague into a sadomasochistic relationship.
The court said France “had failed to fulfil its positive obligations to introduce provisions criminalising and punishing non-consensual sexual acts and to apply them effectively”.
It found violations of Articles 3 and 8 of the convention, which ban torture and guarantee respect for private life.
France will have to pay the 42-year-old applicant, identified only as EA, €20,000 in moral damages and €1,503.77 in legal costs.
The woman was 27 when she started working in 2010 as a pharmacy assistant at the hospital in Briey, in Meurthe-et-Moselle.
She began a sadomasochistic relationship with a department head 16 years her senior.
In 2013 she filed a complaint for rape with torture and acts of barbarism by a person abusing his authority, as well as for physical and psychological violence, sexual harassment and assault.
The defendant was initially convicted of intentional violence and sexual harassment. But in 2021 the Nancy Court of Appeal acquitted him, ruling the relationship was consensual because the two had signed a “master/bitch” contract.
Court points to failings
Having exhausted all avenues of appeal in France, EA took her case to the ECHR.
The court ruled in her favour, pointing to "shortcomings in the legal framework" and "failings in its implementation".
It said the sexual offences reported by EA had been excluded from the investigation, that inquiries were “fragmented”, proceedings dragged on for too long and courts mishandled the question of consent.
“Consent must reflect the free will to have a specific sexual relationship at the time it is given and taking into account the circumstances,” the court said.
“Therefore, no form of prior commitment, including in the form of a written contract, can constitute current consent to a specific sexual practice, as consent is by nature revocable.”
The court also ruled that EA was subjected to “secondary victimisation” – being made to feel she was at fault during the proceedings because of inappropriate questions and remarks.
By relying on her contract with her superior, “the Nancy Court of Appeal exposed her to a form of secondary victimisation, as such reasoning is both guilt-inducing and stigmatising and is likely to deter victims of sexual violence from asserting their rights in court”, the ruling said.
Reactions in France
“This appeal hearing is described by the lawyer and also by my colleagues as ‘nightmarish’,” said Nina Bonhomme Janotto, a jurist with the European Association Against Violence Against Women at Work (AVFT), which was a civil party in the case. “It was a public shaming.”
Marjolaine Vignola, EA's lawyer, said she hoped the court's ruling would motivate the French government to enact a law that better protects women.
Under French law, rape is defined as penetration imposed by violence, coercion, threat or surprise. A bill now before parliament would redefine rape as any non-consensual sexual act, and consent as free and informed, specific, prior and revocable.
If passed, it would no longer be up to victims to prove coercion but up to the accused to demonstrate that sexual intercourse was consensual.
