The European Court of Human Rights (ECHR) has ruled against France in a case in which a husband was, on appeal, granted a divorce by a French court on the grounds that his wife was at fault in the deterioration of their marriage because she had refused, over a period of several years, to have sexual relations with him.
In its ruling, published on Thursday, the Starsbourg-based court – which is the highest authority in Europe on legal matters concerning human rights – declared that “any nonconsensual sexual act constitutes a form of sexual violence” and that the notion of a principle of marital duty was “contrary to sexual freedom” and the right to control one’s body as one sees fit.
The ECHR's panel of seven judges, one presiding, unanimously found that the French magistrates had violated the woman's right to respect for private and family life, as guaranteed by the European convention on human rights, and that it “could not identify any reason” that would justify interference by the public authorities in the “domain of sexuality”.
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The case was first revealed by Mediapart in 2021, when Barbara (not her real name which she has asked to be withheld), now aged 69, filed an ultimate appeal against the French ruling on her divorce before the ECHR.
In 2011, Barbara notified her husband, a magistrate, that she was seeking a divorce from him, after 27 years of marriage, because of what she called 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 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 refuted the accusations made against him, which he said had “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 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.
In 2018, the divorce case was heard at a court in Versailles, which dismissed both of the spouses’ arguments that the other was at fault, and pronounced their divorce on the grounds of the definitive deterioration of their marriage. 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, in a divorce case brought before it, found 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 November 2019, the couple, each accusing the other of being at fault, took their cases to the Versailles appeal court which ruled that Barbara was the only one in the couple to have been at fault. Her refusal to have sexual relations with her husband, 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, in September 2020. Barbara took her appeal to the ECHR in March 2021, supported by the Collectif féministe contre le viol (the Feminist collective against rape) and the Fondation des femmes (Women’s foundation).
In a statement issued on Thursday by Lilia Mhissen, one of her two lawyers, Barbara declared: "I hope this decision will mark a turning point in the fight for women's rights in France. It is now imperative that France, like other European countries, such as Portugal or Spain, take concrete measures to eradicate this rape culture and promote a true culture of consent and mutual respect."
The French authorities were represented before the ECHR by the director of the legal department of the country’s ministry of foreign affairs. He did not contest that the rulings of the French courts constituted an infringement of the right of respect of private life, but argued that this was allowed under article 215 of the civil law code. That sets out that spouses mutually oblige themselves to a “communal life”, which is generally regarded as “communal in bed”, and that that obligation, he argued, had also resulted in a well-established jurisprudence.
The notion of “marital 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, 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”.
But in its ruling, the ECHR dismissed the French argument. “Such a justification would be of a nature to remove the reprehensible character of rape within marriage,” it said. “Whereas the Court has for long considered unacceptable the idea that a husband cannot be prosecuted for the rape of his wife, and that it is contrary not only to the civilised notion of marriage but also, and above all, to the fundamental objectives of the convention” [editor’s note: the 1953 Council of Europe's Convention for the protection of human rights and fundamental freedoms].
Speaking to Mediapart, Barbara said Thursday’s ruling was a “victory for all women” who, like her, “find themselves confronted with absurd and unjust judicial decisions, placing into question their bodily integrity and their right to privacy”.
Through their decisions, which she described as “unworthy of a civilised society”, Barbara said the French appeal court magistrates involved in her divorce case “did not measure the institutional violence” inflicted on her family.
Barbara’s lawyer Lilia Mhissen, said the ECHR’s ruling on Thursday “marks the abolition of ‘marital duty’ and the archaic, canonical vision of the family”, and that it is “a major evolution for the right of women to own their body, including within the framework of marriage”.
“Courts will at last stop interpreting French law from the viewpoint of canon law, and to dictate to women the obligation to have sexual relations within marriage," she added.
Her colleague Delphine Zoughebi, who was also involved in Barbara’s case, said the ruling was “even more fundamental in that close to one rape in two [in France] is committed by the spouse or partner”, and that “from now on, marriage is no longer a sexual servitude”.
The Fondation des femmes issued a statement declaring that “the French state must evolve and eradicate this ‘marital duty’ from its justice system”.
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- The original French version of this report can be found here.
English version by Graham Tearse