Europe's top human rights court ruled Thursday in favor of a 69-year-old French woman whose husband was granted a divorce because she stopped having sex with him.
The European Court of Human Rights (ECHR) criticized France, saying that courts should not consider a woman who refuses to have sex with her husband “at fault” in the event of a divorce.
The court is based in Strasbourg France said they violated article 8 of the European Convention on Human Rights, relating to the right to respect for private and family life.
They said that any concept of marital obligations must take into account “consent” as the basis for sexual intercourse.
“In the opinion of the Court, a license to marry could not mean a license for sexual relations in the future,” the court said in its press release. “Such an interpretation would be tantamount to denying that forced marriage was indefensible in nature. On the other hand, consent would have to show that they were willing to engage in it the sexual relationship at a certain time and in certain circumstances.
The decision came from a panel of seven judges from seven different countries: Spain, France, Armenia, Monaco, San Marino, the Czech Republic and Ukraine.
A mother of four, who wished to remain anonymous, praised the decision.
“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, against an unfair and unjust court ruling that questions their bodily integrity and their right to privacy.”
The decision comes when French society debates the concept of consent.
Women's rights advocates have said that the concept of “consent” needs to be added to French law that defines rape.
The woman did not complain about the divorce, which she had also sought, but about the reasons for which it was granted, the court said.
“Marriage is no longer a sexual service”
The court identified her only as HW, saying she lives in Le Chesnay on the western outskirts of Paris.
“The Court concluded that the very duty of marriage thus contradicted sexual freedom, (and) the right to bodily autonomy,” a report said the court.
“A non-consensual sexual act was a form of sexual violence,” the statement said.
The Strasbourg-based court said the French courts had not “struck a fair balance between the competing interests involved”.
“The applicant's spouse could have filed a petition for divorce, submitting the irretrievable breakdown of the marriage as the main reason, and not, as he did, as other reason,” the court said.
The woman and JC married in 1984 and they had four children, including a disabled daughter who needed a parent to be present regularly, a role her mother took on.
The relationship between husband and wife deteriorated when their first child was born. The woman started having health problems 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, an appeals court in Versailles dismissed the woman's complaints and sided with her husband, while the Cassation Court dismissed the appeal without giving specific reasons.
She turned to the ECHR, which will be the last court where all domestic legal avenues have been exhausted, in 2021.
“It was impossible for me to accept it and leave it at that,” said the woman.
“The decision of the Court of Appeal condemned me and does not deserve a civil society because it denied me the right not to consent to sexual relations, taking away my freedom to make decisions about my body,” she said.
“It confirmed the right of my husband and everyone to exercise their will.”
Her case has been supported by two rights groups, the Fondation des Femmes (Women's Foundation) and Collectif Feministe Contre Le Viol (Feminist Group against Rape).
Emmanuelle Piet, head of the Feminist Against Rape Convention, welcomed the court's decision.
“Ms W spent fifteen years fighting this battle, and it ended with victory, bravely,” she Reuters news agency said. “When you have to have sex in marriage, it's coercion.
While French criminal justice abolished conjugal duty in 1990, “civil judges continue to enforce it through an antiquated view of marriage,” they said.
“From now on, marriage is no longer a sexual service,” said Delphine Zoghebi, a member of the women's defense team. “This decision is more fundamental because almost one in two rapes done by a spouse or partner.”
The ECHR is part of the 46-member pan-European rights body of the Council of Europe. It implements the European Convention on Human Rights and its decisions are legally binding and do not constitute advice.
FREDERICK FLORIN/AFP via Getty Images
