A silent ‘No’ is not a ‘Yes’: France’s consent-based revolution

France, long a beacon of laissez-faire attitudes toward sexuality, has recently adopted a landmark bill redefining rape based on consent. This monumental change shifts the legal focus from the victim's resistance (proving force, coercion, or threat) to the absence of the perpetrator's sexual partner's free agreement.

The new French rape law and its genesis

The key changes to the French rape law include:

Redefinition of rape: Rape and other sexual assault are now defined as any non-consensual sexual act.

Defining consent: Consent is explicitly required to be “freely given, informed, specific, prior and revocable” and assessed “in the light of the circumstances”. Crucially, the law states that consent “cannot be inferred solely from the silence or the lack of reaction of the victim”.

Retaining force elements: The new law maintains that there is no consent if the sexual act is committed with “violence, coercion, threat, or surprise”. This means the old elements now automatically constitute non-consent.

This profound legal shift was catalysed by the harrowing Gisèle Pelicot case, which shook the nation. Pelicot's ex-husband was convicted along with dozens of other men for drugging and repeatedly raping her over a period of years. The trial exposed a critical flaw in the previous French law, which defined rape primarily by the presence of force (violence, coercion, threat or surprise).

Defence lawyers in the case attempted to argue that the men were not aware Pelicot was unable to consent due to the drugging, highlighting a legal gap where a victim’s inability to resist did not automatically equate to a crime, if the element of ‘force’ as traditionally understood was not explicitly proven. This landmark case spurred public and political demand to enshrine consent as the central principle.

The European landscape of consent laws

France now joins a growing number of European countries that have adopted consent-based rape laws, in alignment with the Council of Europe’s Istanbul Convention. While the specific legal models vary (some use a “yes-means-yes” affirmative consent model, others a “no-means-no” or non-consensual model), the fundamental shift is defining rape as sex without freely given consent, rather than requiring proof of physical force.

At least 16 European Union member states have introduced consent-based definitions of rape, including: Germany, Spain, Sweden, Denmark, Finland, Belgium, The Netherlands, Croatia, Cyprus and Czech Republic.

The Indian context: A call for legal evolution

For a concerned citizen, the question of whether Indian rape law needs redefinition is salient, particularly in the wake of the low conviction rate (hovering around 27%, according to National Crime Records Bureau data).

Yes, a redefinition and deeper reform in the Indian law are compellingly needed.

Low conviction rate: The alarmingly low conviction rate, despite stringent penalties and reforms, points less to the fault of the law’s definition of “sexual intercourse” (now expanded beyond penetration) and more to systemic issues like:

Implementation failures: Poor quality of investigation, evidence collection and delays in the trial process.

Societal attitude: Prejudices and patriarchal mindsets within the criminal justice system that often focus on the victim’s character or actions rather than the perpetrator’s crime.

The marital rape exemption: The most significant flaw in the Indian Penal Code (and upheld in the new Bharatiya Nyaya Sanhita, 2023, except in cases of legal separation) is the exemption of a husband from being prosecuted for raping his wife. This colonial-era provision reinforces the outdated and unconstitutional notion that marriage implies irrevocable sexual consent, fundamentally violating a woman's Right to Equality (Article 14) and Right to Life and Personal Liberty (Article 21). A true consent-based law would necessarily strike down this exemption.

Shifting the legal paradigm: While the Indian law (under section 375 of the IPC and its successor) does list situations where consent is vitiated (like fear, misconception of fact or inability to consent), adopting an explicit consent-as-the-basis definition, where the absence of a clear, voluntary ‘yes’ makes the act a crime, could have a powerful educational and cultural impact. It would unequivocally shift the burden of inquiry and accountability entirely onto the accused and away from scrutinizing the victim's resistance.

In essence, while the legal text of the Indian law may appear robust post-2013, the spirit of sexual autonomy and the culture of accountability requires the final step: to define sexual relations, in and out of marriage, as a matter of affirmative, continuous consent.

The way forward

Law alone isn’t a silver bullet. Cultural attitudes — around consent, silence, passivity, gender roles — must shift too. France’s new law is a crucial step, but advocacy groups caution that victims still need better support and that shifting the burden onto perpetrators is only meaningful if backed by resources, training and public education.

As a concerned citizen, the takeaway is clear: law can lead, but justice demands coherence across society — in how we speak of sex, power, autonomy and respect.

The French experience serves as a reminder that law is a living instrument; it must evolve to reflect and shape a more just society, where sexual autonomy is an unassailable right.