The case sparked a debate about attitudes to consent to marriage and women’s rights in France. Lilia Mhisen, HW’s lawyer, said the decision dismantles the outdated concept of “marital duty” and calls on French courts to come into line with modern views on consent and equality.
Women’s rights groups supporting HW said French judges continue to impose an “archaic vision of marriage” that perpetuates harmful stereotypes.
HW, who lives in Le Chesnay near Paris, married her husband, JC, in 1984. They had four children, including a disabled daughter who required constant care, the responsibility of which HW took over.
Their marital relationship deteriorated after the birth of their first child, and in 1992 HW began to experience health problems. In 2002, her husband began to physically and verbally abuse her. After two years, she stopped having sex with him and filed for divorce in 2012.
The woman did not contest the divorce, which she also requested, but objected to the grounds on which it was granted.
In 2019, an appeals court in Versailles rejected her appeals and ruled in favor of her husband. The Court of Cassation, France’s highest court, later rejected her appeal without giving reasons. She then referred her case to the ECtHR in 2021.
The ECtHR ruled that governments should only intervene in matters such as sexuality for very serious reasons. It argued that the idea of ”marital duties” in French law ignored the importance of consent in sexual relations.
The court emphasized that consent to marriage does not mean consent to sex in the future. To suggest otherwise, the ruling said, would effectively deny that marital rape is a serious crime.
The ruling comes amid increased attention on consent in France following the high-profile trial of Dominique Pellicot, who drugged his wife and invited men to rape her. Pellicot and 50 others were convicted last month, and the case has raised concerns about how French law treats consent.
Feminist groups argue that the ECtHR decision reinforces the need to update French law and cultural attitudes.
A recent report by French MPs recommended including the concept of lack of consent in the legal definition of rape, stating that consent must be freely given and can be withdrawn at any time.
