“A perspective for the development of criminal law deserves to be considered”

Dor several weeks, the successive accusations of doctors for acts committed in the exercise of their functions question the legal qualification which could be applied to medical acts of vaginal or rectal penetration without consent. In accordance with medical law, “no medical act or treatment may be performed without the free and informed consent of the person, and this consent may be withdrawn at any time”. A non-consented vaginal or rectal examination is therefore necessarily contrary to the law, but what legal qualification should be mobilized to grasp this illegality in the field of criminal law? In particular, are these acts covered by the qualification of rape?

The answer to this question involves determining the scope of application of article 222-23 of the penal code, which defines rape as “any act of sexual penetration, of whatever nature (…) committed on the person of another or on the person of the author by violence, coercion, threat or surprise.and more particularly the term “sexual”. Should it be understood in its objective, anatomical dimension, referring to any act of penetration into sex or through sex? Or should it be tied to the author’s intent?

The objective interpretation of rape entails a restrictive recognition of its material element: a rape would only be constituted if the act of penetration takes place in the sex or through a sexual organ. Logically, an act of digital rectal examination or the introduction of an object into the victim’s anus could therefore not be considered as constituting rape, whatever the intention of the perpetrator. But this objective interpretation also removes the requirement of sexual intent as an element of the offense so that non-consensual vaginal examinations, which are acts of penetrative sex, could be qualified as rape.

Two incompatible readings

The subjective interpretation, on the other hand, links the term “sexual” to the intention of the author. Rape would then be an act of penetration, whatever it is, imposed with the intention of forcing the victim to have intercourse of a sexual nature. In this perspective, acts of rectal penetration are likely to be considered as rape, including in the context of a medical examination, once the perpetrator’s sexual intention is characterized. On the other hand, this interpretation excludes the qualification of rape for acts of penetration not consented to or imposed without sexual intention.

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