“It’s a sentence from another era, it scandalises me,” said Barbara (not her real name). “I live with it as a denial of justice.” Last September, France’s highest appeals court ruled in favour of her husband in their bitter divorce battle, arguing that Barbara was the faulty party in the case because she had refused to have sexual relations with her husband. The ruling was grounded on an archaic interpretation of common law and jurisprudence constante. This month, with the support of feminist associations, she filed an ultimate appeal before the European Court of Human Rights.
The history of the legal case began in 2011, when Barbara, now aged 66, notified her husband, a magistrate, that she was seeking a divorce from him, after 27 years of marriage, because, she says, of his “threats, blows and quite some other behaviour that is difficult to speak about”. The following year she began the procedure for the divorce, and in 2015 she officially designated her husband as the faulty party.
She argued that, following the birth of their first child, her husband took up a post far from their home in the Yvelines département (county) south-west of Paris, and from then on left her alone to look after the education of what would be their four children. She also accuses him of “verbal and physical violence”, beginning in 2002, against both herself and their youngest daughter who was suffering from physical and psychological difficulties, and who was officially recognised as handicapped in 2016.
Barbara’s husband, who declined to be interviewed by Mediapart, refuted all of the accusations against him, which he has described as having “no objective element” to support them, and accused his wife of “harassing behaviour”. He petitioned for divorce on the grounds that she was at fault because since 2004 she had refused “to consummate the marriage” and because of “her failing in her duty of respect between spouses”.
In a notification (a “main courante”, which is a statement one step short of filing an official complaint) she gave to police in Versailles in 2014, Barbara said that she had “ceased to have sexual relations” with her husband “when he simulated strangulation” of their daughter. In her legal action, she declared that the absence of sexual relations between the couple was in part because of her state of health and also the “violence” of her husband. She added that the poor health of their youngest daughter had taken up all her energy.
Concerning her state of health, Barbara produced medical certificates and doctor’s attestations as evidence of the recurrent health problems she suffered, beginning in 1992, and notably a serious work accident that occurred in 2005, and which caused numerous after-effects. In 2012, she was given the official status of a “handicapped worker”.
In 2018, the case was heard at a court in Versailles, which dismissed the husband’s argument that the marriage had collapsed because Barbara no longer wanted to have sex with him, finding that her state of health was a “legitimate motive” for refusing sexual relations. The court rejected both of the spouses’ arguments that the other was at fault, and pronounced their divorce on the grounds of the definitive deterioration of their conjugal relationship. Both Barbara and her ex-husband appealed the ruling, the latter citing a 1996 decision by the appeal court of Amiens, in northern France, which found in a divorce case brought before it that “if it is admissible to refuse sexual relations to one’s spouse for medical reasons over several weeks, that is no longer the case when the refusal remains for more than a year and that it was not planned to put an end to it one day”.
In 2019, the case was heard at the Versailles appeal court, when it found that Barbara was at fault in the marriage because of her refusal to have sexual relations with her husband. In its ruling, the court said that Barbara’s statement given to police in 2014, and the fact that she “relates the repeated entreaties of her husband on the subject and the disputes that were generated by this situation”, constituted a “confession” that established the facts. The magistrates argued that the “medical elements cannot excuse the continual refusal made by the wife, as from 2004, to have intimate relations with her husband, and this for such a long period”. Her refusal, they concluded, was “a serious and renewed violation of the duties and obligations of marriage, rendering the maintaining of conjugal life intolerable”.
That ruling became definitive after it was upheld by France’s highest appeal court, the Cour de cassation, on September 17th 2020.
Today, Barbara says that decision felt “like a punch” for her. “I was stunned. This decision tormented me to the point of losing sleep for weeks,” she told Mediapart. “Several judges exempted themselves from the notion of consent. They collegially decided to condemn me because I am a married woman. Does this ruling imply that that every married woman must suffer the sexual demands of their husband when she is not in agreement? Does marriage give this right?”
She believes that the ruling “anchors itself within the culture of rape, which is still very present in minds, to the point where the judges recognise it as just […] the justice system diminishes the right of people to have control of their bodies, that’s why it is necessary to contest it”.
The ruling is “medieval” and “scandalous” for Barbara’s lawyers, Lilia Mhissen and Delphine Zoughebi. “We must definitively put an end to an era where the man had at his disposal, as he pleases, the body of his spouse,” Mhissen told Mediapart. “In 2011, marriage can no longer by synonymous with sexual servitude.” She said the ruling was “all the more scandalous” because Barbara “since very many years suffers from serious and recurrent medical problems which led to the recognition of her handicap”.
“While society only just begins to take notice of the horror and the extent of conjugal rape, I cannot understand nor accept this decision, nor the consequences of the message sent out by the justice system,” the lawyer added.
The notion of “conjugal duty” – that is, the “duty” to have sexual relations within a marriage – does not exist in French criminal law (the penal code) and has disappeared from the modern civil code (the Napoleonic code), established in 1804. But it does feature in an indirect manner in articles 212, 215 and 242 of the civil code, and which set out that spouses mutually commit to “fidelity” and a “communal life”, and that a divorce can be requested when one or other of the spouses does not respect the “duties and obligations of the marriage”.
For French jurist Daniel Borillo, a teacher and researcher in private law at the Paris-Nanterre and Paris II universities, these are the “leftovers of canonical law” – that of the Church – which still feature in the civil code. “The notion of ‘conjugal duty’ existed in canonical law,” he explained. “There was the requirement to confirm consent by the union of bodies, the ‘consummation’. The Napoleonic civil code does not completely abandon this notion, because it euphemises the notion of ‘consummation’ by that of cohabiting, that’s to say the act of sharing the same roof, the same bed.”
As for the notion of fidelity – the negative obligation of abstaining from sexual relations outside of marriage – that implies in a legal sense, said Borillo, “a positive obligation to maintain sexual relations with the spouse”.
Which means that to refuse sexual relations within a marriage can be regarded as a fault and a reason for divorce, according to the obligations of fidelity and cohabiting. In practice, however, that is a reason that is rarely recognised in divorces because of the difficulties in proving the refusal to have sexual relations. Nevertheless, Borillo said, it is raised by some lawyers in divorce cases where the parties are seeking to establish the “fault” of one or the other.
“It’s always a game among lawyers, because most people don’t know there is an ‘obligation of sexuality’ and the lawyer can easily push the opposing side into confession, which would be the means of proof,” said Borillo. If the proof is established, the jurisprudence is constante. “It is an interpretation that is validated by the Cour de cassation,” explained Borillo.
Several rulings have found against spouses who refused sexual relations. In 1964, the Cour de cassation pronounced a divorce in which the husband was at fault for “the incapacity to meet his duties as a husband”. In 1996, the appeal court in Nancy, north-east France, pronounced a divorce for reasons of the shared faults of the couple. It considered that the wife had “frequently refused to have intimate relations”, and that her husband, “expressing his aspiration for a minimum of personal life to the detriment of a normal conjugal life”, had “deserted his wife by frequently abstaining [sic]”.
In 2011, the appeal court in Aix-en-Provence, in south-east France, ruled that a man it committed to divorce on the grounds of his fault alone should pay 10,000 euros plus interest to his ex-spouse because the couple’s sexual relations during their 21 years of marriage were insufficient.
The issue of “conjugal duty” also came into question when the crime of rape in marriage was legally recognised in 2006, which undermined the notion that, as Daniel Borillo put it, “the consent given was a consent for life, and that you are, as it were, the owner of the body of your spouse and vice versa”. If a spouse denounces a “conjugal rape”, it involves both the civil and criminal codes. It was after three cases of jurisprudence, which were rulings by the Cour de cassation in 1984, 1990 and in 1992, that a crime of rape committed by one spouse against another was finally enshrined in criminal law in 2006.
It is that jurisprudence which is cited in the submission addressed by Barbara’s lawyers to the European Court of Human Rights (ECHR), and which Mediapart has seen. The lawyers cite the ruling in 1990, on September 5th that year, when the Cour de cassation recognised the crime of rape within marriage. “Since 1990, criminal justice has abolished conjugal duty and recognised that marriage did not exclude the possibility of prosecuting and convicting a husband for the rape of his wife,” said Delphine Zoughebi, one of Barbara’s lawyers. “[…] It is unthinkable that civil [law] judges can bring back conjugal duty through the backdoor. Women must have the right to consent or not to sexual relations.”
In their submission to the ECHR, Zoughebi and her colleague Lilia Mhissen highlight that, “No fault, penal or civil, can be regarded as resulting from a refusal to have sexual relations.”
The lawyers also argue that by denying their client the right “to consent, or not, to sexual relations”, the French justice system has not respected the preamble to the European Convention on Human Rights concerning the right to dignity and to freedom, nor has it respected the Convention’s articles which prohibit "inhuman or degrading treatment” (Article 3) and stipulate that, “No one shall be held in slavery or servitude” (Article 4).
In their submission, they add that the French justice system has violated Barbara’s right to privacy, as guaranteed by Article 8 of the Convention. “The intrusion of the judicial authority is all the more detrimental” for Barbara that “her refusal to have sexual relations was justified by the violence of her husband”, “her serious and recurrent health problems” and the health problems of the couple’s youngest daughter, the lawyers write.
Barbara’s health problems weakened her to such a degree, they add, “that she found herself in a state of particular vulnerability and that her bodily integrity necessitated protection”, while they underline that the French justice system “did not take into account the gravity of her health problems, nor their recurrence”.
Barbara has received the support in France of the “Feminist collective against rape”, the CFCV, and an organisation for women victims of violence and discrimination, la Fondation des Femmes. In a joint statement, the two associations said “the French jurisdictions deny the right of women to consent or not to sexual relations […] Marriage is not, and should not be, a sexual servitude”.
They point out, citing official Frenchgovernment figures from 2018, that of the around 95,000 rapes and attempted rapes in one year, in 47% of the cases the perpetrator was the husband or ex-husband of the victim. “It has required numerous years of struggle to finish with the zone of no rights that the conjugal bed represented, where, it is known, the majority of rapes occur,” the statement continued. “It is fundamental that in France judges can no longer impose on women, directly or indirectly, an obligation to have sexual relationships. To allow ‘conjugal duty’ to endure is to maintain a tool of intimidation for raping sexual attackers within couples, and to deny the existence, in our penal code, of the aggravated crime of conjugal rape.”
The statement added that if the ECHR finds against France in the case of Barbara, it “would allow at last to guarantee the respect of women’s privacy and bodily integrity, including within marriage”.
Jurist Daniel Borillo underlined that even if there was no sentence under criminal law concerning ‘conjugal duty’, there is a civil law penalty along “moral” lines which can lead to “an economic punishment” for the person found at fault, including at a patrimonial level. To avoid what he called “archaic and absurd” situations, Borillo said that “the notion of fault in divorce and the notion of fidelity in marriage” – what he called “relics of canonical law” – must be excluded from France’s laws.
- The original French version of this report can be found here.
English version by Graham Tearse