Europe’s highest human rights court backs French woman who refused to have sex with her husband

Her marriage had been deteriorating for decades – marred, she said, by health problems and threats of violence. But when the woman filed for divorce, French courts found her at fault for refusing to have sex with her husband.

The case sparked a debate over attitudes towards consent and women’s rights in France, which advocates said highlighted the need for legal reform around non-consensual sex within marriage .

On Thursday, the 69-year-old Frenchwoman, known by her initials HW, won her appeal before Europe’s highest human rights court, which unanimously ruled in her favor, finding that the refusal to have sex sexual misconduct could not be considered a reason for misconduct. in divorce.

“The very existence of such a marital obligation ran counter to sexual freedom,” including the right to bodily autonomy and the government’s obligation to prevent sexual and domestic violence, the European Court said of human rights in its judgment.

“This victory is for all women who, like me, find themselves confronted with aberrant and unjust legal decisions, calling into question their bodily integrity and their right to privacy,” the woman said in a statement Thursday.

HW and her husband were married in 1984; they went on to have four children. After ending her sexual relationship, she filed for divorce in 2012.

In 2019, a French appeals court in Versailles cited her refusal to have sex as proof that she was solely responsible for the divorce. When she appealed this decision to the Court of Cassation, France’s highest court, her application was rejected without any explanation.

Under French law, divorce for fault can allow the injured spouse to claim damages, financial or otherwise, from the at-fault spouse.

The battle lasted more than a decade, with successive French courts upholding the decision. After exhausting all legal avenues in France, HW filed a complaint with the European Court of Human Rights in 2021, arguing that the French court’s decision constituted an unfair intrusion into his privacy and a violation of his physical integrity.

The European Court of Human Rights, based in Strasbourg, France, judges human rights violations committed by 46 member states of the Council of Europe, a body older than the European Union and its predecessor , the European Economic Community.

The International Court of Justice said Thursday that it could identify “no reason likely to justify this interference by public authorities in the field of sexuality.” She emphasizes that in French law, the notion of “conjugal duties” ignores the question of consent in sexual relations.

HW’s lawyer, Lilia Mhissen, celebrated the legal victory, saying she hoped the ruling would mark “a turning point in the fight for women’s rights in France.”

“This decision marks the abolition of marital duty and the archaic and canonical vision of the family,” she said in a statement.

Mhissen added that “it is now imperative that France (…) takes concrete steps to eradicate this culture of rape and promote a true culture of consent and mutual respect.”

In response to the ECHR ruling, French Justice Minister Gérald Darmanin told journalists on Thursday: “We will obviously go in the direction of history and we will adapt our law. »

For many, the decision brought back into the spotlight the historic verdict in the case of Gisèle Pelicot, whose ex-husband, Dominique Pélicot, was found guilty of drugging her and ensuring that dozens men raped her for a decade.

Following this historic trial, the French Parliament published a report recommending that the notion of non-consent be included in the legal definition of rape. She recalled that consent must be freely given and can be withdrawn at any time.

While some women’s rights advocates welcomed the ECHR’s ruling in the HW case, others said it underlined the need for urgent legal reform to ensure protection against sexual violence in the domestic context. .

Anne-Cécile Mailfert, president of the Women’s Foundation, praised the work of women’s organizations for legal reform, but said it was a “long road to women’s liberation towards the free use of their bodies.

“I welcome the decision of the ECHR in the face of an unfair and anachronistic decision of the Court of Appeal,” wrote the French Minister of Equality, Aurore Bergé, in a message on X.

“No woman belongs to her husband. Women are free. Free to have sex or not,” she added.