Strasbourg, France:
The Supreme Court of Europe ruled on Thursday in favor of a 69-year-old Frenchwoman whose husband divorced because she no longer had sex with him.
The European Court of Human Rights (ECtHR) has ruled against France, saying a woman who refuses to have sex with her husband should not be considered “guilty” by the courts in the event of divorce.
The court in Strasbourg ruled that France had violated Article 8 of the European Convention on Human Rights, regarding the right to respect for private and family life.
It said any concept of marital duties must take into account 'consent' as the basis for sexual relations.
The mother of four, who wished to remain anonymous, welcomed the ruling.
“I hope this decision will mark a turning point in the fight for women's rights in France,” she said in a statement.
“This victory is for all women who, like me, are confronted with anomalous and unjust judicial decisions that question their bodily integrity and their right to privacy.”
The ruling comes as French society debates the concept of consent.
Women's rights advocates have said the concept of 'consent' should be added to the French law defining rape.
The woman did not complain about the divorce, which she had also applied for, but about the grounds on which it was granted, the court said.
'Sexual violence'
The court identified her only as HW and said she lives in Le Chesnay in the western suburbs of Paris.
“The Court concluded that the existence of such a marital obligation is contrary to sexual freedom and the right to bodily autonomy,” a court statement said.
“Any non-consensual act of a sexual nature constituted a form of sexual violence,” the statement added.
The Strasbourg court said French courts had not struck a “fair balance between the competing interests at stake.”
“The applicant's husband could have filed an application for divorce, citing the irretrievable breakdown of the marriage as the main ground and not, as he had done, as an alternative ground,” the court ruled.
The woman and JC married in 1984 and had four children, including a disabled daughter who required the constant presence of a parent, a role her mother took on.
Relations between husband and wife deteriorated when their first child was born. The woman started having health problems in 1992.
In 2002, her husband began physically and verbally abusing her, the court said.
In 2004, she stopped having sex with him and in 2012, she filed for divorce.
In 2019, an appeals court in Versailles rejected the woman's complaints and sided with her husband, while the Court of Cassation rejected an appeal without giving specific reasons.
In 2021, she turned to the ECtHR, which acts as a court of last instance where all domestic legal options have been exhausted.
'Sexual servitude'
“It was impossible for me to accept it and leave it at that,” the woman said.
“The decision of the Court of Appeal that convicted me was and is unworthy of a civilized society because it denied me the right not to consent to sexual relations, thereby depriving me of the freedom to make decisions about my body,” said them.
“It reinforced the right of my husband and all spouses to impose their will.”
Her cause was supported by two rights groups, the Fondation des Femmes (Women's Foundation) and Collectif feministe contre le viol (Feminist Collective Against Rape).
In a 2021 joint statement, the women's rights groups said: “Marriage is not and should not be sexual servitude.”
While French criminal law abolished the obligation to marry in 1990, “civil judges continue to impose this obligation through an archaic view of marriage,” they said.
“From now on, marriage is no longer sexual servitude,” said Delphine Zoughebi, a member of the woman's defense team.
“This decision is all the more fundamental because almost one in two rapes is committed by a spouse or partner.”
The ECHR is part of the pan-European rights body of the Council of Europe, which consists of 46 members. It enforces the European Convention on Human Rights and its rulings are legally binding and not advisory.
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