The closely watched trial of a man accused of drugging his wife and inviting others to rape her while she lay unconscious at their home in the south of France has become a rallying cry for those who say society needs to change the way it thinks about sexual assault. Fifty years ago, another rape case caused similar outcry – and led to lasting changes in French law.
“You know, this isn’t just one rape trial at stake.”
So said Gisèle Halimi, the activist lawyer responsible for turning a 1974 case into a public interrogation of France’s attitudes to rape.
Together with the two victims, she decided to put the French legal system itself on trial – and it would be found wanting.
Now, as another case exposes shortcomings in the law, a new generation of campaigners say it’s time for another turning point.
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Three against two
The first came thanks to two women: Anne Tonglet and Araceli Castellano.
Both from Belgium and a couple at the time, they were backpacking on France’s south coast in summer 1974, aged 24 and 19.
On the night of 20 August, they set camp in the Morgiou calanque near Marseille. A local man approached them, found himself rebuffed, and tried again the next day with the same result.
That night, he returned with two others. The three men – Serge Petrilli, Guy Roger and Albert Mouglalis – forced their way into the women’s tent and beat and assaulted them for more than four hours.
The attack left both women injured and Castellano pregnant. They reported it to police the following morning and the men were arrested – and then Tonglet and Castellano found themselves up against a rape law that dated back to the time of Napoleon Bonaparte.
A matter of 'decency'
Written when rape was primarily considered a dishonour to a husband and his heirs, France’s penal code at the time defined the offence as “illicit coitus with a woman who is known not to consent”.
That narrow interpretation excluded any other type of sex act, and any other type of victim – notably men. It also made the crime of rape difficult to prove.
Castellano and Tonglet were confronted with all the aspersions the law invited investigators to cast: had they really not consented? Not even after they stopped physically fighting back? And how were the men to know?
The judge initially tasked with assessing their case concluded it didn’t meet the bar for rape. She downgraded the charges to indecent assault and battery “not resulting in total incapacity to work for more than eight days”.
That was typical at the time. More often than not, rapes were tried as assault or “public indecency” – misdemeanours that went before the correctional tribunal, a court for lesser offences, where they would be heard by magistrates rather than juries and result in lighter sentences.
They were also tried, by default, behind closed doors. Judges said it was for the protection of the victim, but inevitably the accused benefitted too.
Law on trial
“What we want is publicity,” lawyer Halimi told a TV interviewer in 1977.
At the time she was one of the loudest voices calling for reforms of French laws that failed women, fresh from defending a landmark case that helped expose the injustice of prosecuting those who sought abortions and shift the needle in favour of legalisation.
Halimi believed a similar tack might be taken with rape, to press the need for criminal prosecutions and take the matter out from behind closed doors.
“Because we believe that it’s one thing for a man to rape, and another to know it’ll get around his village, his work, the papers,” she said. “Publicity can serve as a form of deterrent.”
That would take victims who were up for a fight. Among several women who approached Halimi to take on their cases were Castellano and Tonglet.
In her infamous abortion case, the lawyer had spoken of “putting the law on trial”, Tonglet recalled. “When I heard that, I said to myself, ‘that’s exactly what we have to do with rape too’,” she told France Culture radio decades later.
“It’s about indicting laws that are not fit for purpose.”
'The trial of all women'
At the head of an all-female legal team, Halimi managed to drive their case up through the courts until finally a trial was set at the assize court of Aix-en-Provence.
It opened nearly four years after the events, on 2 May 1978, and lasted two tumultuous days.
Outside, women’s rights groups – and Halimi herself – clashed with people who had turned out to support the three men accused.
“I remember getting hit. People were spitting in our faces, we had a hard time reaching the courtroom,” Halimi later recalled.
Inside, Castellano and Tonglet faced other humiliations. Foreigners, lesbians and occasional naturists, they were subjected to questioning that implied they had provoked the accused by travelling together and sleeping naked.
Nonetheless they testified in open court, the proceedings reported by journalists from across France and beyond.
Defying the defence’s complaints that the trial had become “no longer the trial of two young women but of all women”, Halimi urged the jury: “You must convict these three men, because otherwise you will condemn women to never more be believed.”
On the evening of 3 May, all three men were found guilty. Petrilli, the instigator, was sentenced to six years in prison while Roger and Mouglalis each got four years.
Redefining rape
By the following month, France’s Senate – citing the effects of “recent cases that have been widely reported in the press” on public opinion – had voted in favour of rewriting the criminal code.
That process would end up taking another two and a half years, but in December 1980 a new law was passed that redefined rape as “any act of sexual penetration committed on another person by violence, constraint or surprise”.
And when rape was prosecuted, it would be treated as a serious offence, heard at a criminal trial and – unless the victim chose otherwise – in open court.
France has broadened its definition of rape in the decades since, but it remains roughly similar. And now, another high-profile trial is bolstering the argument that it needs its most radical update since the 1980 reform.
Mass rape trial revives question of consent within French law
Some of the men accused of raping Gisèle Pélicot while she lay drugged and unconscious have argued that they didn’t know she had not given her consent beforehand, nor did they have the obligation to seek it directly.
That defence demonstrates the urgency of changing French law so that any sex act performed without someone’s affirmative consent by definition counts as rape – something both President Emmanuel Macron and new Justice Minister Didier Migaud have said they support.
If indeed a reform is made, it will be the second time France has individual victims to thank for forcing the question into the public eye.
“It takes true courage for a woman to fight back,” Halimi said in 1977, “because she knows she’s not fighting for herself. I don’t know that she herself can ever recover, but she’s doing it precisely so that other women don’t have to go through the same ordeal as she has.”
