French woman ‘at fault’ for refusing sex with husband goes to European Court
A woman who lost her divorce case has filed a legal appeal with the European Court of Human Rights after French courts ruled she had violated her ‘marital duty’ by refusing to have sex with her husband. Feminist groups denounce what they see as sexual servitude within marriage.
In 2019, an appeal court in Versailles found that the 66-year-old woman, who has not been named, was the only one to blame for the collapse of her marriage because of her protracted refusal to have sexual relations with her husband.
In her legal action, the woman declared it was partly due to her poor state of health and her husband’s violence.
The court, however, found that her refusal constituted “a serious and renewed violation of the duties and obligations of marriage, making the maintenance of a shared life intolerable”.
The ruling became definitive after it was upheld in France’s highest appeal court, the Cour de cassation, in September 2020.
“The ruling appears to me to be completely archaic and medieval,” Lilia Mhissen, one of the plaintiff’s lawyers, said in an interview with France Info.
“I think it’s completely scandalous that we can turn the institution of marriage into one of sexual servitude for women.”
Having lost all her appeals in France, the woman has filed an ultimate appeal before the European Court of Human Rights (ECHR) which banned the notion of marital duty in 1995.
Backed by two feminist groups, they argue that the French court ruling contravened human rights legislation by “interfering in private life” and “violation of physical integrity”.
The notion of “marital duty” – the requirement to have sexual relations within a marriage – no longer exists in French criminal law or in France's modern civil code which dates from 1804.
But several articles in the civil code allow judges to offer rather archaic interpretations in some thorny divorce cases.
Articles 212, 215 and 242 of France’s civil code lay down the fact spouses must pledge mutual help, respect, fidelity and a communal life.
For law specialist Julie Mattiussi the notion of communal life is interpreted as the sharing of a roof, table and bed.
“Since 1804 judges have consistently offered this interpretation, in reality it’s a reminder of the religious origins of civil marriage,” she told France Info.
Marriage is not sexual servitude
They deplore the fact French justice “continues to impose marital duty,” therefore “denying the right of women to consent or not to sexual relations”.
“Marriage is not, and should not be, a sexual servitude,” they wrote in a joint statement.
They also pointed out that in 47 percent of the 95,000 registered rapes and attempted rapes in France each year, "the aggressor is either the victim’s spouse or ex-spouse".
Marital rape and marital duty
Non-consenting sexual relations within marriage were criminalised in 2006 when the concept of marital rape was introduced.
Feminists question how it can be an offence to refuse to have sex with your spouse yet a crime to impose such relations.
Emmanuel Piet, of the Feminist collective against rape, insists there is a deep contradiction.
“It amounts to imposing sexual relations on married couples and also contradicts texts relating to marital rape,” she told Le Parisien daily.
“To refuse to have sex within the couple constitutes a civil fault but to force your partner [to have sex] is rape, it's a crime.”
Rulings against men too
There have been several other rulings against spouses who refused sex: around 10 cases in the last 20 years according to Mattiussi.
In 1964, the Cour de cassation pronounced a divorce in which the husband was at fault for “incapacity to meet his duties as a husband”.
In another divorce case in 2011, an appeal court in Aix-en-provence ruled that the husband should pay €10,000 plus interest to his ex-wife because the couple’s sexual relations were insufficient .
In most cases judges deem that refusal to have sex is a fault only if the refusal was over a protracted period of time and was not the result of a physical impediment.
Mattiussi says the civil code must nonetheless evolve.
“It is important that people realise that marital duty does exist [in France] and that it deserves to be criticised and removed so we turn the page."
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