Background
In September 2021, a woman filed a criminal complaint against her uncle alleging physical and sexual violence, including alleged sexual penetration occurring between January 2015 and September 2021. The investigating judge charged him with rape, sexual assault, violence, and corruption of a minor, with the charges aggravated by the victim’s age (under fifteen). Following the defendant’s appeal, the appellate court’s instruction chamber issued a referral order to the departmental criminal court in March 2026. The defendant then appealed to the Court of Cassation, challenging the legality of the referral.
The critical issue arose because the instruction chamber applied France’s newly enacted Law No. 2025-1057 (November 6, 2025)—which substantially revised the definition of sexual assault in the Penal Code—to criminal conduct that had occurred years before the law’s entry into force. Under the old law, rape required proof of sexual penetration committed with “violence, constraint, threat or surprise.” The new law redefines sexual assault as “any non-consensual sexual act” and specifies that consent must be “free and enlightened, specific, prior and revocable,” while stating that consent is absent when acts are committed with violence, constraint, threat or surprise—but crucially, not exclusively in those circumstances.
The Court’s Holding
The Court of Cassation ruled that the new law violated the principle against retroactive application of criminal statutes. Article 112-1 of the French Penal Code provides that only facts constituting an offense at the time they were committed are punishable, and penalties apply according to the law in force at that time. However, the provision permits an exception: new statutes may apply to prior offenses if they are less severe than the old law.
The court determined that Law No. 2025-1057 is demonstrably more severe than its predecessor. The legislative history and parliamentary proceedings explicitly aimed to “extend the criminalization of sexual assault to behaviors that previously escaped repression” by broadening the legal definition beyond the traditional elements of violence, constraint, threat, or surprise. The new law expands the constituent elements of sexual assault by decoupling criminal liability from these traditional force-based requirements and introducing novel criteria for consent—that it be “free, enlightened, specific, prior and revocable”—requirements not previously established in judicial interpretation of the old statute.
Because the instruction chamber charged the defendant with rape based solely on lack of consent, without establishing any of the traditional elements (violence, constraint, threat, or surprise) required under the pre-2025 law, the court found that the lower court had improperly applied the new, more severe statute to conduct occurring before its entry into force. This violated both the retroactivity prohibition and the principle of legality. Accordingly, the Court of Cassation annulled the entire referral order and remanded the case to a differently composed instruction chamber of the Paris appellate court for reconsideration under the correct legal framework.
Key Takeaways
- Criminal statutes that expand the definition of an offense or introduce new constituent elements are “more severe” and cannot be applied retroactively to prior conduct, even if legislative intent was merely to “clarify” or “interpret” existing law.
- The 2025 consent-based redefinition of sexual assault, which decouples criminal liability from traditional force-based elements and adds requirements for consent to be “free, enlightened, specific, prior and revocable,” constitutes a substantive change in the law sufficient to trigger retroactivity protections.
- A charge of rape under the old law required proof of sexual penetration with violence, constraint, threat or surprise; proof of non-consent alone is insufficient for conviction under pre-2025 law.
Why It Matters
This decision illustrates a fundamental tension in criminal law modernization: while reforming outdated statutory language around sexual assault to center on consent reflects contemporary understanding of sexual violence, retroactive application to historical conduct raises serious due process concerns. The Court of Cassation’s holding protects the principle that individuals cannot be prosecuted or convicted under legal standards that did not exist at the time of their alleged conduct—a cornerstone of criminal legality.
The decision has significant implications for pending sexual assault cases in France involving conduct predating November 6, 2025. Prosecutors seeking to pursue charges based on lack of consent without establishing traditional force-based elements must await new trials under the reformed statute or rely on evidence satisfying the old law’s requirements. The ruling also signals that French courts will carefully scrutinize whether ostensibly “interpretive” legislative reforms actually expand criminal liability, applying the stricter retroactivity standard when they do.