SEX ACCORDING TO MAÏA
" Stop-uh! " : thus the character interpreted by Juliette Binoche rebuffs her husband with wandering hands, at the beginning of The Good Wife, the comedy signed Martin Provost currently on the screens… Everything is said: in theory, in the context of marriage, the spouses must have sexual intercourse. In practice, it doesn't always happen like that.
Today, if the conjugal duty seems to us as obsolete as the right to bread, the question of the consent in the couple remains of topicality. Are we really free to say no when there are feelings? When does the frequency of intercourse seem dictated by a certain social norm? How to define marital rape?
To answer these questions, let us turn to an expert: Julie Mattiussi, lecturer at the University of Haute-Alsace, author of an article entitled "Conjugal duty: the obligation to consent" to be published in late 2020 in the proceedings of the symposium "Reverse and reverse of consent" (ISJPS, CNRS, Sciences Po, ed. Mare & Martin).
Julie Mattiussi recalls first of all that conjugal duty comes from canon law, therefore from Catholicism. Originally, this obligation is supposed to serve as a framework for procreation, and as a guarantee against lust (well attempted). When the invention of modern marriage, after the French Revolution, the civil code does not mention either the consumption of marriage or conjugal duty. They exist… but modesty forbids them to be written black and white in the text.
From 1965, article 215 of the civil code established that "The spouses oblige each other to a community of life". Which induces a bed community. Failure to marry is a cause of divorce which may open the right to damages for the victim … provided that he can prove the absence of sexual intercourse. Concretely, during fault divorce proceedings (which are less and less frequent), accusations of sexual neglect are rarely retained.
The judge's assessment is also subjective: when is sexual intercourse considered to be frequent enough? Is this “legal” sexual intercourse necessarily a penetration? Does the requirement vary according to whether it is a man or a woman who complains, and whether the couple is heterosexual or homosexual?
Let us specify therefore: for the law, the conjugal duty is violated when one of the spouses avoids the sexual relations "Unjustifiably". The refusal can indeed be justified: by old age, by illness (on condition that one resumes intercourse after recovery), or because the spouse has created unfavorable conditions (an adulterous husband can hardly demand that his legitimate wife goes to the pan).
Second requirement: relationships must be "normal", therefore they exclude marital rape. Indeed, for the judge, an imposed sexual relationship is "Necessarily" conceived as an abnormal relationship. But that was not always the case: until 1992, case law was based on the principle that by marrying, the spouses consented " once for all " to sex in marriage. This is no longer the case today: marital rape is a violation of marital duty!
Post-# metoo world
Fast forward, so here we are in the year of grace 2020 (year III of the post- # metoo world). Should we keep this vestige of religion in our secular society? What to do with a marital duty that is extremely limited in its applications, vague, subject to the discretion of the judges, leading the spouses in divorce proceedings to break away – most often without result?
On the face of it, this obsolete notion of case law is on the verge of disappearing: nothing to worry about! On the stack side, as long as conjugal duty exists, its shadow will hover over the spouses. Benoît Le Dévédec, lawyer at the Resource Center for Interveners with Authors of Sexual Violence (CRIAVS), points out this very contemporary paradox: "The sexual freedom of the one who wants is opposed to the sexual freedom of the one who does not want. Formerly, in marriage, the former prevailed legally. Today, in any situation, it is the second to prevail. However, in reality, things are more complex: the (formerly) legal obligation to have sex is now mainly social. "
Indeed, the spouses find themselves trapped by contradictory injunctions: we are not forced, but we “force” ourselves, love is a child of Bohemia, but subject to the laws, sex is a pleasure, but also a sacrifice … Our fresh emancipations come up against the most traditional patterns, and the internalization of stereotypes about the desire of men and women.
Especially since it is the latter, more often "dropouts" in sexuality, who are generally trapped (on this theme in particular, I invite you to re-read my column from two weeks ago on the desire of women) . Is there still consent if they feel obliged to consent, for fear of losing their couple, of hurting their partner, of taking the risk of a divorce?
For Julie Mattiussi, conjugal duty should be abolished altogether, because it "Tolerates and encourages consensual sex with reluctance " – the formulation sounds like a cold shower. She delivers three essential reasons: the total misinterpretation with our current conceptions (compulsory sexuality has disastrous consequences on those who "force" themselves), redundancy (there is already a social sanction attached to the fact of not having relationships sexual, no need to add a legal sanction)… and, quite simply, freedom (the law does not have to interfere at this point in the intimacy of couples).
The"Self-forgetfulness" and the " good mood " evoked by the character interpreted by Juliette Binoche to define "the good wife" seem hardly compatible with a conjugal framework which encourages to keep an accounting of reports sometimes conceded with bad grace. Admittedly, conjugal duty remains essentially symbolic. But symbols count. The idea that we should "force" ourselves is inherently pernicious: the couple's sexuality needs conversations, not sanctions.
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