The European Court of Human Rights on Thursday ruled in favor of a 69-year-old French woman whose husband was granted a divorce on the grounds that she had stopped having sex with him.
The European Court of Human Rights (ECHR) has condemned France, saying that a woman who refuses to have sex with her husband should not be considered in the courts as “at fault” in the event of a divorce.
Court in Strasbourg declared that France had violated Article 8 European Convention on Human Rights concerning the right to respect for private and family life.
It stated that any conception of marital duty must take into account “consent” as the basis of sexual relations.
“According to the court, consent to marriage cannot mean consent to future sexual relations,” says the court's decision. news release. “Such an interpretation would be tantamount to denying that marital rape was inherently reprehensible. On the contrary, consent had to reflect a free desire to engage in sexual relations at a given time and in specific circumstances.'
The decision was made by a panel of seven judges from seven different countries: Spain, France, Armenia, Monaco, San Marino, the Czech Republic and Ukraine.
The mother of four, who wished to remain anonymous, welcomed the ruling.
“I hope this decision will be a turning point in the fight for women's rights in France,” she said in a statement. “This is a victory for all women who, like me, have faced ridiculous and unfair court decisions that question their bodily integrity and their right to privacy.”
The decision was taken against the background of a discussion in French society about the concept of consent.
Women's rights advocates said the concept of “consent” should be added to French law defining rape.
The woman complained not about the divorce, which she also sought, but about the grounds on which it was granted, the court said.
“Marriage is no longer sexual slavery”
The court identified her only as HW, saying she lives in Les Chassnays in the western suburbs of Paris.
“The court concluded that the very existence of such a marital obligation is contrary to sexual freedom (and) the right to bodily autonomy,” statement the court said.
“Any non-consensual sexual act was a form of sexual assault,” the statement added.
The court in Strasbourg said that the French courts had not found a “fair balance between the competing interests”.
“The petitioner's husband could have filed a petition for divorce citing irretrievable breakdown of the marriage as the main reason and not, as he did, as an alternative reason,” the court ruled.
The woman and JC married in 1984 and had four children, including a disabled daughter who needed constant parental presence, a role her mother took on.
The relationship between husband and wife deteriorated when their first child was born. The woman's health problems began in 1992.
In 2002, her husband began abusing her physically and verbally, the court heard.
In 2004, she stopped having sex with him, and in 2012 she filed for divorce.
In 2019, the Court of Appeal in Versailles dismissed the woman's appeals and sided with her husband, while the Court of Cassation dismissed the appeal without giving specific reasons.
In 2021, she appealed to the ECHR, which acts as a court of last resort, where all domestic legal options have been exhausted.
“It was impossible for me to put up with it and leave it like that,” said the woman.
“The decision of the Court of Appeal that convicted me was and remains unworthy of a civilized society because it took away my right to not consent to sex, taking away my freedom to make decisions about my body,” she said.
“It strengthened the right of my husband and all spouses to impose their will.”
Her cause was supported by two human rights groups: Fondation des Femmes (Women's Foundation) and Collectif Feministe Contre Le Viol (Feminist Collective Against Rape).
Emmanuel Peet, head of the Feminist Collective Against Rape, welcomed the court's decision.
“Ms W spent fifteen years fighting this battle and she ended up winning, well done,” she said Reuters news agency reported. “If you are forced to have sex in marriage, that is rape.”
Although French criminal justice abolished the spousal obligation in 1990, “civil judges continue to impose it through an archaic vision of marriage,” they said.
“From now on, marriage is no longer sexual slavery,” said Delfina Zugebi, a member of the women's advocacy group. “This decision is all the more fundamental because almost every second rape is committed by a husband or partner.”
The ECHR is part of the pan-European human rights body of the Council of Europe, which consists of 46 members. It enforces the European Convention on Human Rights and its regulations are legally binding, not advisory.
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