Article 215 of the Civil Code: the spouses mutually obligate each other to live together. “Community of life”, does this imply an obligation to have sexual relations between spouses? It is the famous notion of “marital duty” that two feminist associations want to see definitely returned to the limbo of the canonical law of the Catholic Church in the Middle Ages.
For the first time, a woman, accompanied by the Collectif féministe contre le rape (CFCV) and the Women’s Foundation, has just filed an appeal against France with the European Court of Human Rights (ECHR) for interference with privacy and physical harm. integrity. The Court of Appeals of Versailles sanctioned her in 2019 by declaring a divorce for her exclusive injustices by holding her “rejection of intimate relationship with her husband” guilty. In September last year, the Court of Cassation rejected the appeal of this 66-year-old woman with several health problems.
“It is still patriarchal and archaic justice”
Although the term “marital duty” is completely absent in civil law, case law has in fact derived from the duty of fidelity (Article 212), the obligation of sexual intercourse between spouses. It is therefore not found in the law. ‘It actually exists because judges have chosen to interpret it in their own way. It is still patriarchal and archaic justice that says to women: if you are married, please spread your thighs!, protests Dr. Emmanuelle Piet from CFCV. This is equivalent to forcing married people to have sexual relations and is thus in conflict with the texts on marital rape. Refusing to have intercourse with the couple is a civil error, but forcing one’s spouse to commit a crime of rape … Since 2006, it has even been an aggravating circumstance! »
“Sexual relationships between spouses are especially expressions of the devotion they have to each other, while being part of the continuity of the duties that follow from marriage.” This judgment of the Court of Appeal of Aix-en-Provence, of 3 May 2011, this time concerns a man. He was then sentenced by the French courts to pay 10,000 euros to his wife for having failed in his marital “duties” for several years, thus causing “damage” to be repaired.
Consequently, non-compliance with this marital duty can be considered as erroneous conduct during the divorce. Rejection of sex must be repeated and maintained. For example, in a judgment handed down by the Court of Cassation on 28 January 2015, the judges acknowledged that it is a mistake to refuse to have sexual relations for more than eight years. Note: the refusal must not be due to a medical problem. If the husband or wife is physically unable to have sexual relations, he can not be blamed for his behavior.
In 1995, Britain was condemned by the European Court of Justice
However, since the 2006 law, the presumption of consent between spouses has completely disappeared. “It is unbearable. How will victims of marital rape lodge a complaint tomorrow? France must be condemned once and for all by the ECHR, so that this notion of marital duty disappear. This is the purpose of our struggle with this woman who approached us, with the Women’s Foundation. »
In a joint press release, “Feminist Collective Against Rape and the Women’s Foundation remind that sexual freedom implies the freedom to have sexual relations between consenting adults … as well as the freedom not to have them. The effort is serious: In 47% of the 94,000 “rapes and attempted rapes a year are the rapist’s spouse or ex-spouse. It took many years of struggle to put an end to the area of lawlessness represented by the marriage bed, where we know the majority of rapes take place.”
On 22 November 1995, with the United Kingdom condemning this issue, the European Court of Justice has already banned “marital duty”. Soon France? The two associations have just received an acknowledgment of receipt from this court concerning the lodging of their appeal.