Including or excluding consent to the French offence of rape: an analysis of the criminal literature

Since the #MeToo movement, many discussions arose on the role of consent in defining rape, among academics, legal practitioners, non-governmental organisations, and at the European Union level. This debate is particularly relevant in France, where rape is a sexual act committed by violence, coercion, threat, or surprise, with no mention of consent in the Criminal Code. By conducting a meta-analysis of the discourse of the French legal literature on this topic in four criminal law reviews and ten textbooks, this study offers a new perspective to this debate. Based on this analysis, the definition of rape and the role of consent is barely discussed by the literature, partly due to an equivalence drawn between the constitutive elements of the offence and the absence of consent of the victim. Yet, the relevance of consent is highly criticised, mainly by a few male academics, using primarily arguments of authority instead of a critical approach to the topic. In general, the French legal literature on the role of consent in defining rape supports rape myths and gender stereotypes.