Assessment of the moral constraint against the minor victim
under 15 years old
● Crim., March 17, 2021, appeal no. 20-86.318
In the state of the law applicable to the case, a sexual relationship is qualified as rape when it has been obtained
by “violence, coercion, threat or surprise”, the coercion being able to be physical or moral. This
condition is applicable whether the victim is an adult or a minor: thus, there is no provision for a presumption
lack of consent of the minor, because of his age, to a sexual act.
To strengthen the protection of minors under the age of 15, a 2018 law provided that coercion
morality or surprise "are characterized by the abuse of the vulnerability of the victim who does not have the
necessary discernment.
However, can this text apply to acts committed prior to its entry into force?
Yes, because it is a provision that interprets the condition of moral duress and does not presume
the latter. This is what the legislator wanted.
This interpretative provision does not exempt the judge from having to assess, taking into account these
criteria and factual circumstances of the case, whether, in the case in point, the acts were committed
with moral constraint or surprise. The Court of Cassation, judge of the law, cannot substitute its own
appreciation.
It should be recalled that in any case, and always in the state of the law applicable to the case, the relations
sexual relations with a minor under the age of 15, obtained without violence, coercion or surprise, are
prohibited and constitute the offense of sexual abuse.
On April 21, 2021, the legislator adopted a law which modifies the applicable texts: in particular, is
henceforth constituting a rape any act of sexual penetration or any bucco-genital act committed by
an adult on the person of a minor under the age of 15, when the age difference between the adult and
the minor is at least 5 years old (the age difference condition is not applicable if the facts are
committed in exchange for remuneration, the provision of a benefit in kind or the promise of
such benefit or remuneration).
- Section 222-29-1
Amended by LAW n°2021-478 of April 21, 2021 – art. 1
Sexual assaults other than rape are punishable by ten years' imprisonment and a fine of €150,000 when imposed on a minor under the age of fifteen by violence, coercion, threat or surprise.
- Section 222-29-2
Creation LAW n°2021-478 of April 21, 2021 – art. 1
Apart from the case provided for in article 222-29-1, sexual assault is also punishable by ten years' imprisonment and a fine of €150,000 for any sexual assault other than rape committed by an adult on the person of the victim. 'a fifteen-year-old minor, when the age difference between the major and the minor is at least five years.
The age difference condition provided for in the first paragraph of this article does not apply if the acts were committed in exchange for remuneration, a promise of remuneration, the provision of a benefit in kind or the promise of such a benefit.
- Section 222-29-3
Creation LAW n°2021-478 of April 21, 2021 – art. 1
Except in the case provided for in article 222-29-1, constitutes an incestuous sexual assault punishable by ten years' imprisonment and a fine of €150,000 any sexual assault other than rape committed by an adult on the person of a minor, when the major is an ascendant or any other person mentioned in article 222-22-3 having legal or de facto authority over the minor.
- Section 227-22
Version in force since April 23, 2021
Amended by LAW n°2021-478 of April 21, 2021 – art. 3
Aiding or attempting to aid the corruption of a minor is punishable by five years' imprisonment and a fine of €75,000. These penalties are increased to seven years' imprisonment and a fine of 100,000 euros when the minor has been put in contact with the perpetrator through the use, for the dissemination of messages intended for an undetermined public , of an electronic communications network or that the acts are committed in teaching or educational establishments or in the premises of the administration, as well as, when students or the public enter or leave or in a time very close to these, near these establishments or premises.
The same penalties are applicable in particular to the fact, committed by an adult, of organizing meetings involving exhibitions or sexual relations in which a minor attends or participates or of knowingly attending such meetings.
The penalties are increased to ten years' imprisonment and a fine of 150,000 euros when the offenses were committed against a minor aged fifteen. They are increased to ten years' imprisonment and a fine of one million euros when the acts were committed in an organized gang.
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