France and the Question of Consent

In April 2021, France passed a law that, for the first time in its history, fixed an age of sexual consent (at 15). Up until that point, French law relied on the notion of “sexual majority” (also set at 15), but legislators never agreed on a particular age at which individuals were regarded as cognitively or emotionally capable of giving informed consent to sex. Thus, even though sexual relations between adults and minors were illegal, they were not automatically considered—or prosecuted—as rape, if they were deemed consensual. Rape, according to its definition in the French Penal Code, needed to involve “violence, coercion, threat, or surprise.” If none of these elements was present, these cases could be tried as a délit, an infraction punishable with a maximum of five to seven years in jail, as opposed to rape, a crime punished much more severely. France, in this sense, differed from the United States and many of its European neighbors. In the United States, for example, the notion of “statutory rape” was specifically conceived to circumvent the issue of consent and to criminalize all sexual activity in which one of the individuals was below a determined age. For many in France, the 2021 law was long overdue. As the minister of justice put it, with this “historic bill” fixing the age of consent, the message was now unambiguous: “Children are off-limits.”

In the heated debates that preceded the law, two books came up regularly: Vanessa Springora’s Le consentement (2020), translated into English in 2021 by Natasha Lehrer as Consent, and Camille Kouchner’s La familia grande, which appeared last January and will come out in an English translation by Adriana Hunter in 2022. Springora recounts her relationship with the acclaimed writer Gabriel Matzneff when she was 14 and he was in his 50s. Kouchner narrates how her stepfather, Olivier Duhamel, a professor of constitutional law and the former president of Sciences Po, one of France’s most prestigious centers of higher education, sexually abused her twin brother from the time they were 14. Both memoirs, highly publicized and widely praised, have been read as symptoms of France’s #MeToo moment and as important triggers for the 2021 law.

Both works do indeed present a trenchant critique of the ways in which consent has been framed legally and culturally in France since the 1970s. Specifically, they target the idea prevalent in many leftist circles that consent functions as the transparent and unmediated expression of sexual freedom and that law should stay out of consensual relationships entirely.

At the same time, however, these authors do not simply endorse a liberal understanding of consent that presumes that we can make choices as free, rational, and autonomous actors at a certain age. Instead of proposing an alternative model of consent, Springora’s and Kouchner’s books move us beyond the paradigm of consent altogether. By reasserting the inescapability of the unconscious—especially in matters pertaining to sex—they urge us to abandon the yes/no, wanted/unwanted, of-age/underage dichotomies that have so often trapped these discussions.

The vision of consent that emerges from these two books is thus less stable or coherent than the law imagines it. But, perhaps, it is also better adapted to the complex, discontinuous, and often contradictory forms that experience and desire take.

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France’s reluctance to posit a clear age of consent was the product of both a long-term history and a more recent sociocultural context. This story begins in the 1970s, when pedophilia became a burning topic. It did so as part of the broader conversation, sparked by May ’68, around power, whether in prisons, families, psychiatric institutions, or education. For what came to be known as the pensée 68, the policing of children’s sexuality touched on the most salient theoretical questions of the time: the affective dimensions of authority, the agency and desire of children, the entrapment of familialism and sexual moralism, the limits of legalism and a carceral approach to sex, and the dangers of disciplinary societies.

In 1977, some of the most famous names of the French intellectual world—including Sartre, Barthes, Beauvoir, Deleuze, Guattari, Foucault, and Derrida—signed a series of petitions in major newspapers calling for the decriminalization of sexual relations between adults and minors. Pointing to the discrepancy between an “antiquated law” and contemporary sexual mores, these texts argued that when no violence was involved, minors should be granted full freedom to take on sexual decisions.

Michel Foucault forcefully articulated this point in a 1978 radio dialogue with the writer Guy Hocquenghem. Foucault contrasted rape and incest—which he characterized as “intolerable” and “inacceptable”—with “sexual relations without violence,” in which he encouraged judges to listen to minors. As he put it, the obsession with underage sex was a perfect example of the new penal approach centered on the policing of “dangerous individuals”: in this case, the pedophile. Furthermore, as Foucault and Hocquenghem reminded their audience, the age of consent had, since the Vichy regime, served to discriminate against homosexuals, who, until 1981, had to wait until they were 21 (as opposed to 15 in heterosexual relations) to reach sexual majority.

Aside from this longer history, the French hesitation to use the full force of the law to punish relations between adults and minors was also a response to a more immediate context. In the 1990s, a particular strand of French thought contended, vociferously, that sexual mores in France were simply different. The “French cultural exception” in matters of sex was a politically, socially, and intellectually powerful discourse that was developed over two decades in opposition to two other paradigms: first, the “American scarecrow,” to use Éric Fassin’s helpful expression, and later, Islam.

Starting in the 1990s, French critics commented extensively on the various sex scandals that raged in the United States, from Clarence Thomas and Anita Hill to Bill Clinton and Monica Lewinsky. Yet, they did so only to emphasize the contrast with France. Unlike the United States, presented as the land of Puritanism, sex wars, and rabid feminism, France was depicted as birthplace of gallantry, seduction, and the doux commerce des sexes. Several best-selling authors during these years, from Mona Ozouf to Claude Habib, theorized this doctrine of a happy, playful, and consenting heterosexuality. This came to be known—problematically—as a féminisme à la française.

In the early 2000s, the “French cultural exception” was also erected in relation to a second pole, Islam. In 2002, the murder of a teenage girl burned alive by her ex-boyfriend, as well as the publication of various memoirs on gang rapes (tournantes), focused the conversation around sexual violence on the banlieues, the predominantly Muslim neighborhoods surrounding Paris. From this perspective, the problem with the banlieues was not structural poverty or the systematic discrimination in housing, employment, incarceration, and education that their inhabitants faced. Rather, the crux of the matter was their dysfunctional sexuality and Islam’s failure to embrace sexual democracy.¹ If the United States was plagued by a feminism that was too radical, aggressive, and angry, Islam suffered from its absence, from its overwhelming patriarchy and sexism. In between these two extremes, France stood as the perfect balance.

The vision of consent that emerges from these two books is less stable or coherent than the law imagines it.

The discourse of “cultural exception” was, of course, very much removed from the realities of everyday life, where gender discrimination was far from exceptional. Even so, this rhetoric still carried immense weight.

This was particularly evident in 2011, when Dominique Strauss-Kahn, the French politician and former director of the International Monetary Fund, was charged with raping a 32-year-old immigrant maid working in a New York City hotel. Several proponents of what Joan Scott has called the “myth of French seduction” came to Strauss-Kahn’s defense.² They explained that he was a libertine, a seducer, a charmer, but certainly not a rapist. Yet, the “DSK Affair” marked a turning point, as it shifted the conversation around sexual violence from the banlieues to the very heart of the Parisian upper classes.

After the explosion of the Harvey Weinstein affair in 2017 and the sudden global phenomenon that became #MeToo, the rhetoric of “French seduction” returned to the scene. But it did so only briefly: with an editorial signed by one hundred women, most famously Catherine Deneuve, deploring the moralism of #MeToo (#BalanceTonPorc in its French version), praising sexual freedom, and calling for the right to be importunées (courted but also harassed). Public reaction was swift, especially from rape victims; Deneuve eventually apologized.

Nonetheless, the Weinstein affair appeared to catalyze an unstoppable revolution of norms.³ And all this ultimately led to the 2021 law.

From the first pages of their books, Springora and Kouchner locate their stories in a particular social class: that of Parisian left elite molded by the contestatory spirit of May ’68.

Springora grew up with a divorced and free-spirited mother—whom she describes as “marked by May 68”—who worked in publishing. It was at one of her mother’s literary dinner parties that Springora first met Matzneff, who proceeded to seduce her. Springora and her mother knew that Matzneff was a famous “pedophile.” He never hid this, and his novels revolved around underage girls and boys.

Springora eventually learned that Matzneff had also initiated and drafted the petitions calling in 1977 for the decriminalization of sex between adults and minors. “In a different social context,” she explains, Matzneff probably would have been sent to jail. But “in our bohemian world of artists and intellectuals, deviations from conventional morality were viewed with a certain level of tolerance, even admiration.” In the 1970s atmosphere of free love and sexual liberation, Springora writes, “repressing juvenile sexuality was considered to be a form of social oppression, and limiting sexual relationships to those between individuals of the same age range constituted a form of segregation. The fight against any curb on desire, any kind of repression, was the watchword of the era; no one spoke up against it, except for a few straightlaced puritans and reactionary tribunals.”

Kouchner also sets up her account against the backdrop of May ’68. Her mother, Évelyne Pisier, was a feminist, an accomplished professor of political science, and the occasional lover of Fidel Castro. Her father, Bernard Kouchner, was a former Maoist, the cofounder of Médecins Sans Frontières, and, in later years, government minister. Kouchner recalls her mother telling her that making love when you are 12 constituted true “freedom” as she spoon-fed her French theory, including Foucault: “Never denounce, never condemn in a society that is thirsty for punishment. … Always beware of the law.”

Pisier met her second husband, Olivier Duhamel, after she divorced Kouchner, and together they built a magical world. Much of the book takes place in Duhamel’s mythical summerhouse, Sanary, where the smoke-filled walls are covered with May ’68 posters, the wine flows, and their radical friends discuss politics, philosophy, and literature by the pool.

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Interestingly, neither book presents an unequivocal attack on May ’68 from the conservative perspective that has become quite well known in France.⁴ Rather, the main target of the critique is this abstract concept of freedom that would somehow give rise to a self-evident notion of consent. Thus, although neither author mentions the term unconscious specifically, the psyche repeatedly breaks the narrative at the seams in the form of symptoms, fantasies, and transferences. As both writers suggest, if consent means simply saying yes, then the minors in these two stories consented, or at least they did not clearly say no. Springora was madly in love with Matzneff and flattered by his attention. The Kouchner children adored their stepfather, who took them to concerts, talked politics with them, and played the piano.

Yet, from the first time they have sex, Springora describes her body as “refusing,” even though she had decided that Matzneff would be her first lover: “Where there is neither pain nor coercion, there is no rape. … Sexual abuse, on the other hand, is insidious and perverse, and the victim might be barely aware it is happening. … How is it possible to acknowledge having been abused, when it’s impossible to deny having consented, having felt desire, for the very adult who was so eager to take advantage of you?”

As the relationship develops, “the dispossession” begins. Springora stops reading and skips school, even though she had previously been a voracious reader and an excellent student. She feels more and more detached from her peers; she has panic attacks, cannot eat, lands at the hospital for several weeks with a streptococcal infection, and eventually experiences a psychotic break with a “phase of depersonalization.” Psychoanalysis, she claims, literally saves her life and helps her recover the desire to live, work, and, eventually, write.

After Kouchner’s brother confesses the sexual abuse while swearing his sister to secrecy, Camille also falls into a serious depression, coupled with episodes of overeating and anorexia. She is ravaged by guilt, “dissociated,” nothing interests her, she is unable to form stable relationships, and she ends up hospitalized with a pulmonary embolism: “Auto-immune illness? Auto-intoxicated body?” When the siblings eventually confront their mother, she denies it and sinks into alcoholism and a depression of her own.

As Kouchner writes, not refusing is not equivalent to consenting:

When a teenager says yes to the person raising him, it is incest. He says yes at the moment of his growing desire. He says yes because he trusts you and your stupid teaching. And the violence is when you decide to take advantage of this. … Because at this moment, the young boy will not know how to say no. He wants to please you too much and to discover everything. … It will go on and he will feel guilty, he will think that it is his fault, that he sought it out.

The point here is not that the truth of consent actually resides in the body or in biological essentialism, but rather that unconscious processes are often at odds with will.

Ultimately, Springora and Kouchner are each able to work through their past, with the help of psychoanalysis, by writing, but also by having children of their own. Kouchner decides to finally speak out when her children and nephews are invited to the old family home at Sanary, and the specter of incest comes back to haunt her. Springora has explained that she hopes her story will help her own teenage son make sense of his mother and navigate sexuality.

In this sense, we can also read these books as a reflection on transgenerational trauma, as an attempt to prevent the transmission of abuse, silence, and shame, literally but also metaphorically. And we can see them as literary interventions into the exciting conversations around feminism and consent, most recently taken up by scholars Amia Srinivasan and Katherine Angel, among others.⁵ By highlighting the limits of consent as the privileged framework to think through sexuality, Springora and Kouchner plea for a different vision of feminism: one less focused on individual choice and freedom, and more aware of the unpredictable and yet tenacious effects of psychic life.

 

This article was commissioned by Bécquer Seguín.