For several weeks, the successive implications of doctors for acts committed in the exercise of their functions question the legal qualification which could be applied to medical or rectal non -consenting medical or rectal penetration acts. Pursuant to medical law, “no medical act or treatment can be practiced without the free and informed consent of the person, and this consent can be removed at any time”. A vaginal or rectal touch not consented is therefore necessarily contrary to the law, but what legal qualification mobilize to grasp this illegality on the ground of criminal law? In particular, are these acts covered by the qualification of rape?
The answer to this question means determining the scope of article 222-23 of the penal code, which defines rape as “any act of sexual penetration, of whatever kind (…) committed On the person of others or on the author of the author by violence, constraint, threatening or surprise “, and more particularly of the term” sexual “. Should it be understood in its objective, anatomical dimension, referring to any act of penetration into sex or by sex? Or should it be attached to the author’s intention?
The objective interpretation of the rape carries out restrictive recognition of its material element: rape would only be constituted if the act of penetration is done in sex or by a sexual organ. Logically, an act of rectal touch or the introduction of an object in the anus of the victim could therefore not be considered as constituting rape, whatever the intention of the author. But this objective interpretation also makes the requirement of sexual intention disappear as a constitutive element of the offense so that the vaginal touches not consented, which are acts of penetration in sex, could be qualified as rape.
Two incompatible readings
Subjective interpretation, on the other hand, links the term “sexual” to the author. Rape would then be an act of penetration, whatever it is, imposed with the intention of constraining the victim to have relations of a sexual nature. In this perspective, acts of rectal penetration are likely to be considered a rape, including in the context of a medical examination, as soon as the sexual intention of the author is characterized. On the other hand, this interpretation excludes the qualification of rape for acts of penetration not granted or imposed without sexual intention.
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