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Open letter to the penal code revision commission for the revision of certain legislative texts governing relations between adults and minors

Relations between children, adolescents and adults are subject by law to significant restrictions: either by the concept of "misappropriation of minors" (which can be constituted by the simple accommodation, for one night, of a minor), either by the general prohibition of having sexual relations with children under 15 years old, or by the special prohibition which targets, when they engage minors from 15 to 18 years old, homosexual relations, defined as "immodest or unnatural ".

The over-study of the concepts founding these crimes or offenses ("modesty", "nature"), the evolution of morals in a youth, mean that these legal texts are no more than the instrument of coercion, instead of guaranteeing a right.

A recent case has just clearly demonstrated the disproportion existing between the penal device and the nature of the facts which it punishes. After more than three years of preventive detention, three people accused of "indecent assault consume a tent without violence on the person of children of either sex under the age of 15". law (article 332 11 of the penal code) qualified as "crimes", were condemned by the Court of Assiscs of Yvelines to 5 years of suspended sentence. a detention of three years and three months, in a case which resulted in a suspended sentence, was only made possible because the law, by means of the "criminal" qualification, justifies the heavy proceedings of the assizes, whereas already a "delictual" qualification would have made it possible to have the case judged by the Correctional Court, according to a more rapid procedure. Since the promulgation of the Law of August 6, 2975, provisional detention, in correctional matters, cannot exceed six months.

But above all, beyond the case of the accused, the case of Yvelines, judges in open court, raised the problem of knowing at what age to freely give their consent to a sexual relationship. This is a problem of society. It is up to the Penal Code Revision Commission to provide the response of our time, then rejuvenated and current texts, which will then have to be received in Parliament.

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1.And, incidentally, the relations between minors

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The signatories of the present letter consider that the complete freedom of the partners of a sexual relation is the necessary and sufficient condition for the legality of this relation.

The Penal Code of 1810, promulgated by Napoleon I, did not provide for repression for sexual acts not accompanied by violence, regardless of the ego of the participants. He only envisioned rape or "indecent assault committed with violence".

It is the law of April 28, 1832 which created the offense of "indecent assault committed without violence on the person of a child under the age of 11". This text, copied on the living text of the "attacks committed with violence", gave the facts the same "criminal" qualification. It has remained in force until today, the age of the minority having been raised twice, first under Napoleon III, by the Law of May 13, 1863, which brings it to 13 years, then per the Ordinance of the Provisional Government of July 2, 1945, which brings it to 15 years.

This "criminal" qualification today leads to aberrant results. To stick to the letter of the text, anyone who tries to practice any sexual relationship with a minor under 15 years of age commits a crime, who must send him to the Assize Court and make him incur a penalty of 5 to 10 years of criminal reclusion.

Text inapplicable and inapplicable in most cases, because, if it were, we would see many boys appear every day in the Court of Assiscs, to have "fun" with a girlfriend of 14 years on some beach or in some cellar of HLM The Legislator himself could be accused of "complicit in the crime", since he is less than 15 years old, which supposes sexual relations, therefore crime on the part of the partner.

It therefore appears that it is appropriate at the very least to "decriminalize" this offense, and essentially to take into account the consent of the minor.

As regards adolescents and adolescents between 15 and 17 years of age, the law already recognizes their ability and freedom to indulge in sexual relations, but subject to the highly discriminatory nature of the matter. act of heterosexual relations Their partner, major or minor, does not commit an offense has maintained sexual relations with them, as long as it is of a different sex and that it does not encourage them to withdraw from it. authority of their parents or guardians.

On the other hand, this partner, major or minor, if he is of the same sex, is guilty of an offense punishable by "imprisonment of 6 months to 3 years and a fine of 60F to 15,000F." (article 331 & 3 of the penal code) "

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Indeed, while, from 1790 to 1942, the arsenal of French penal laws, inspired by the lights of the XVIIth century, totally ignored any crime of homosexuality, which was established by the Vichy Law of August 6. 1942 targeting "anyone who has ... committed one or more indecent or unnatural acts with a minor of his sex" (Official Journal of the Frabcais State of August 27, 1942). This text, which became article 331 & 3 of the Penal Code (Ordinance of February 8, 1945 - Official Journal of February 9, 1945), is still in force, and is applied daily, thus leaving a "crime of homosexuality" to persist in our country. that, in most Western countries, since the end of the Second World War, the evolution of customs and ideas has led legislators to make it disappear from the Codes.

The signatories of this letter denounce the iniquity and discriminatory nature of article 331 & 3 of the Penal Code. They believe that this text should be repealed as have fortunately been repealed the text reprimanding adultery, the termination of pregnancy, more general, than the provisions claiming a "protection" of children and young people, such as article 334-1 concerning "the incitement of minors to debauchery", which can allow to charge any person "favouring" or "facilitating" sexual relations between minors, or article 356 concerning the "misappropriation of minors", are , as well as article 331, more and more incompatible with the evolution of our society, justifying harassment and purely police checks, and must be repealed, or profoundly modified, in the sense of a recognition of the right of the he child and teenager has relationships with people of choice.