Europe's rights court on Thursday, January 23, ruled in favor of a 69-year-old Frenchwoman whose husband had obtained a divorce on the grounds that she had stopped having sex with him. The European Court of Human Rights (ECHR) condemned France, saying a woman who refuses to have sex with her husband should not be considered "at fault" by courts in the event of divorce. Women's rights activists hailed a "historic" ruling, while Justice Minister Gerald Darmanin said French legislation should now be amended.
The Strasbourg-based court said France violated Article 8 of the European Convention on Human Rights regarding the right to respect for private and family life. It said that any concept of marital duties needed to take into account "consent" as the basis for sexual relations.
The mother-of-four, who wished to remain anonymous, hailed the ruling. "I hope that this decision will mark a turning point in the fight for women's rights in France," she said in a statement. "This victory is for all the women who, like me, find themselves faced with aberrant and unjust court rulings that call into question their bodily integrity and their right to privacy."
'Can't impose sexual acts'
The ruling, handed down unanimously by seven judges, comes as French society debates the concept of consent. Women's rights advocates have said the notion of consent must be added to France's law defining rape.
The ruling came after Frenchman Dominique Pelicot was in December sentenced to 20 years in jail following a historic trial where he was convicted of recruiting dozens of strangers to rape his heavily drugged wife Gisèle Pelicot. "Gisèle Pelicot fought for the rapes committed and organized by her husband to be recognized, and today, the decision of the European Court of Human Rights has reached the same conclusion – that a husband cannot impose sexual acts on a wife," said Gabrielle Bravo of the Fondation des femmes, one of two groups that supported the woman's case.
The woman did not complain about the divorce, which she had also sought, but rather about the grounds on which it had been granted, the court said. "Today's decision will be binding for French judges, who will no longer be able to consider that living together implies sleeping together," said Delphine Zoughebi, a member of the woman's defense team. She said the ruling was crucial because nearly one in two rapes is committed by a spouse or partner. "Of course, we will go with the flow of history and adapt our law," said Justice Minister Darmanin, promising to speak to lawmakers "very quickly."
'Right to autonomy'
The court identified the woman only as H.W., saying she lives in Le Chesnay in the western suburbs of Paris. "The Court concluded that the very existence of such a marital obligation ran counter to sexual freedom, (and) the right to bodily autonomy," a statement from the court said. "Any non-consensual act of a sexual nature constituted a form of sexual violence," the statement added.
The Strasbourg-based court said the French courts had not struck "a fair balance between the competing interests at stake." "The applicant's husband could have petitioned for divorce, submitting the irretrievable breakdown of the marriage as the principal ground, and not, as he had done, as an alternative ground," the court found.
The woman and her ex-spouse married in 1984 and had four children, including a daughter with a disability who needed the constant presence of a parent, a role that her mother took on. Relations between husband and wife deteriorated when their first child was born. The woman began experiencing health problems in 1992. In 2002, her husband began abusing her physically and verbally, the court said. In 2004, she stopped having sex with him and in 2012, petitioned for divorce.
In 2019, an appeals court in Versailles dismissed the woman's complaints and sided with her husband, while the Court of Cassation dismissed an appeal without giving specific reasons. She turned to the ECHR, which acts as a court of last instance where all domestic legal avenues are exhausted, in 2021. "It was impossible for me to accept it and leave it at that," the woman said.