After the multiple affairs of obstetrical and gynecological violence, two bills have been tabled to combat this phenomenon. One plans to create a specific offense in the Penal Code to punish such violence, the other to reinforce the already existing articles of law. Two conceptions which raise the question of the current penal qualification and the existing legal texts.
Since the Kouchner law of 2002, consent has been enshrined in the Public health code which provides that “the patient must have free and informed consent to the acts and treatments proposed to him” and the latter can be withdrawn at any time. But the latter does not provide for a sanction.
“The only sanction would be disciplinary within the framework of the College of Physicians, says My-Kim Yang-Paya, lawyer and president of the association Lawyer women victims. If a patient complains, she will have to take the doctor’s order. He then organizes a mediation during which there may be an imbalance in the context of violence or sexist acts. » And it is for this reason that there law proposal by LFI deputy Sophia Chikirou mentions the abolition of this prior mediation.
The articles of the Penal Code, from sexist insult to rape
On the other hand, there is in the Penal Code articles of law that range from sexist insults to rape and that can apply to obstetrical and gynecological violence, “if all the elements constituting the offense or the crime of rape are established”, My-Kim Yang-Paya analysis.
Indeed, according to the Penal Code, it is necessary to prove that the patient was coerced, threatened, assaulted or surprised in the event of non-consensual sexual penetration. Similarly, the law obliges to prove the author’s intention, that is to say the fact that he knew that the patient was not consenting. “For these reasons, I refute the argument of some who would say that doctors will no longer be able to practice without fear of accusations. On rape, the issue of consent is not the only one at the heart of the Penal Code,” explains My-Kim Yang-Paya.
It is in this perspective that Sophia Chikirou’s bill falls, which intends to create an aggravating circumstance when crimes and offenses are committed by a health professional in the context of medical monitoring.
The question of “sexual intent”
During the revelation of several cases, the notion of sexual intention came back into the debates, some believing that in matters of gynecology, rape could not be qualified without sexual intention. For My-Kim Yang-Paya, “the courts have tried to go a little further to qualify as rape acts where there was no sexual penetration within the meaning of article 222-23 of the Penal Code”.
That is to say in a sexual organ or through a sexual organ, as in the Theo affair for example. But this concept “does not exist in the Penal Code”, assures the lawyer. “Adding the notion of sexual intention would allow the perpetrator to clear himself by invoking this notion, even if the facts are qualified”, she warns.
Creating a specific offense, as is the case in the bill of the senator Europe Écologie-Les Verts Raymonde Poncet Monge, makes it possible to counter this argument. But My-Kim Yang-Paya remains cautious: “It does not seem to me necessarily necessary since this violence is completely provable if the elements are constituted. On the other hand, a circumstance leads to the fact that a health professional can be accused of rape if the constituent elements of the Penal Code are constituted without adding a sexual intention. »
