What is rape by surprise?

The trial of Mr. Pélicot for drugging, raping and handing over his wife to men who committed acts of sexual penetration against her, known in the press as the "Mazan trial", has put the crime of rape, and more specifically rape by surprise, in the headlines.

In a national and international context where positions are being taken in favor of redefining rape to include the concept/term of "consent", I feel it is important to return to this subject from the point of view of my practice.

The French penal code defines the crime of rape as follows (article 222-23 last modified 2021):

"Any act of sexual penetration of any kind whatsoever, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, coercion, threat or surprise is rape."

Jurisprudence - in other words, the decisions of courts and tribunals - has given these terms a specific interpretation.

On the surprise

Examples of early case law in the Code Bleu

• A man broke into the bed of a sleeping woman who thought she was having sex with her husband (Cass, Crim 25 juin 1987),
• A man vaginally penetrates a woman who is in a state of hypnosis (Cass, Crim 6 novembre 1960).

In the course of my practice before the French courts, I heard a 39-year-old man give the following explanations, describing his behavior towards his partner, then aged 25:

- How many times has she told you that she doesn't want to be penetrated in the morning or even in her sleep?

- On several occasions, but I always tried my luck.

It was 2020.

He was tried by the magistrates' court for committing sexual assaults on his partner (these were rapes which could have been tried by the assize court, but which were disqualified as sexual assaults. The female victim accepted this).

As the statistics commentators now regularly tell us, most rape victims will never file a complaint, and many of those who do will receive the letter "classement sans suite pour infraction insuffisamment caractérisée", or classification 21 in the jargon.

Another example I've come across in my consulting practice seems relevant.

The situation dates back to 2003.

This situation has not been brought before the courts.

"I was a young adult, not yet 20. He was my sponsor, a 2nd year student appointed by the student office. It was part of the integration process, and my roommate had told me about it. I signed up and was contacted by P, who invited me for a drink after class. It was a totally normal and ordinary date. We talked about school, our families, we lived in studios close to the campus, everything was normal.

A week later, he suggested we meet at his place, and as I didn't have much money, I thought he wouldn't either, so I didn't think much more of it. I already had older childhood friends and was a regular guest at their homes, so I didn't think at all about the "intimate" and therefore dangerous nature of his apartment.

The studio was small, as always in the Paris region, and he offered me a seat on his bed - at the same time, there was no chair... he put on some music, served a glass of I don't know what, I don't remember having time to drink it.

He jumped on me, kissed me vigorously, undressed me - I was in a very short skirt I wore with sneakers so I could run fast, which didn't help - and penetrated me vaginally with his sex.

It hurt, I couldn't push it away, it was like being stuck in my body and in my head. I remember jumping in the shower, putting cold water between my legs and going home.

At no point did I tell myself that he was raping me, because in fact I wasn't able to "tell myself" anything. When I think back, I see myself there, completely blocked.

A week later, he invited me back.

And I went back.

He did the same and I went home and took the longest shower of my life.

And I didn't think at all, it's like I couldn't process the information.

Yet I had all my cognitive abilities. But no, I was blocked.

Without consciously identifying the reason, I fled from P.

But at the time, I wasn't conscious of it at all, and I even thought it was a shame not to follow in the footsteps of my classmates, who were having some very cool adventures with their 2nd year sponsors. I ran away and didn't want to think about it.

A few weeks later, I collapsed in the lecture hall, managed to get home, and when I got there, I had a spasmophilia attack.

Luckily, I didn't live alone, so my roommate called SOS doctor.

When the doctor arrived, he barely touched my arm before I started crying and convulsing.

He said: "Something serious has happened to you.

I couldn't make the connection with what had happened to me a few days earlier.

He didn't have time, so he left and gave me a sleeping pill.

I peed myself that night.

It's been well over 10 years since all this happened.

It took a long, long, long time for me to come to terms with the fact that I'd been raped.

For me, it's a rape by surprise and moral constraint, the threat or physical violence, he didn't need it, I was tetanized.

I was totally unable to react."

The summary of this testimony is written with the victim's permission.
Mrs X did not wish to press charges.

Why doesn't a rape victim react? This will be the subject of another article at a later date.

Since 2014, Me Choralyne Dumesnil has been carrying out actions to prevent sexual and gender-based violence in Education, and in particular Higher Education and research.

The intervention consists of real-life situations that help to understand different cases and identify the rights and duties of each person. Would you like to organize a prevention event? Please do not hesitate to contact us.