This article provides a critical analysis of a concept which will sound rather obvious: sexual relations are only acceptable when both parties consent to them; any form of forced sex is henceforth considered as rape, even when it takes place between two spouses. The author looks at how difficult it can be for the judge and the psychiatric expert to evaluate the plaintiff’s consent or refusal, and – even more difficult – the defendant’s perception of her consent or refusal. The subtleties of flirting and foreplay, the potential violence involved in sex, inexperience on the part of the lovers are today some of the frightening pitfalls that can lead to extremely severe sentences when charges are pressed. Indeed since a change in the law in France in 2006, spousal rape is now considered an aggravating circumstance and as such is more severely punished than the rape of a stranger.

Based on 15 years experience of legal psychiatry and a review of more than 200 cases of rape, the author, a qualified psychiatrist and expert approved by the French Court of Appeal, qualified in clinical sexology, specialising in sexual delinquency, shares with us some of the results of his experience.

An increasing percentage of cases of rape – currently 60% of the total – involve partners or ex-partners. This does not mean that there is more violence within couples today than in the past; but rather that the threshold of perception of violence has considerably dropped, and shows us that we should reconsider the relevance of currently used legal terms and concepts.

The author, a psychiatrist and sexologist, approved as an expert by the French Court of Appeal, specializing in sexual delinquency, explains why he believes that “consent”, the evaluation of which is presented to the court by the psychiatric expert, is not a legally meaningful criterion since it cannot be proven and can easily be denied. He suggests that our legal terminology should be expanded so as to avoid lumping together under the same name “rape” very different situations ranging from an aggression in the street of a total stranger to sex forced by an egocentric spouse on a partner who no longer desires it.