Marc SALOMONE /
Blog:
madic50.blogspot.com / Book: The two forms, Amazon
Paris, Wednesday February 10, 2021
REFLECTION ON THE CONTRACTUAL FORM OF
SEXUAL RELATIONSHIPS OF MAJORS TOWARDS MINORS AND PROPOSAL FOR A LAW
ON THE FORMAL DECLARATION THEREFORE VERBAL OF THE REQUIRED
DECLARATIONS.
1)- The plan
1)- Preamble
2)- The law, the word and the action
3)- Ordinary bonds
4)- The contractual form of the sexual
relationship between minors and adults
5)- - The contractual agreement
6)- Consent
7)- Random certainties of age
8)- legal democracy
9)- Passion and the law
10)- The fetish word
11)– utility
Word learning
Bill
14)– Conclusion
1)- Preamble
The law provides for the suppression of
crime and public debate is concerned with strengthening
the possibilities.
However, by thinking too much about its
repression, one relies on the ambiguities of its sole
expectation.
I therefore suggest that the legislator
should also be concerned with giving the actors the means to
prevent it, or at least to thwart it,
and its victims to morally control its course.
a- This reflection aims to establish
first that sexual relations between an adult and a minor are
established on a contractual basis and
require legal declarations and then that these required
declarations must be verbal.
b- Regardless of the ages for
controlling sexual activity set by law, I am examining here the
conditions for the legality of the
execution of the implicit contract which involves the two parties
equally.
2)- - The law, the word and the action
1- the right
The current debate on the sexual
relations between an adult and a minor concerns the action of the
legal authorities after the relation
when this one is considered as prejudicial to the minor.
It seems to go without saying that the
relationship itself is not the site of legal action by the partners
during its development.
These rules required for the respect of
the contract would be subordinated to the expression of the
desires and the expression of the right
would come only afterwards to sanction the excesses and the
abuses of these.
The legal debate would therefore come
after the action.
During this, it would be either
unwelcome or unnecessary.
The statement of law would not have to
intervene in a time which would fall under the intimate, of
private life.
In action, the right would appear only
through the use of its tacit form or as an accompaniment to a
confrontation between partners.
It therefore becomes a pretext to keep
silent since generally minors cannot face adults.
The exercise of the right would then
command them silence. What is confirmed in the facts.
The words of the law would regain their
meaning and their force only afterwards to judge a
posteriori of the legality of the
action by the consideration of the effects of this one.
The knowledge of the facts that the
media deliver to us and our experience invalidates the evidence
of this temporality.
2- the verb
The court cases relating to sexual
relations show that these include contractual principles which
require declarations, the usually tacit nature of which is one of the
elements allowing criminal drift.
I therefore propose to make formally
declarative, verbal, these declarations already required and reduced
to their tacit formulation.
This formal declaration, that is to say
verbal, would make it possible to involve all the actors in the
maintenance of legality and respect for
persons, minors in this case.
It would ward off second-hand criminals
and remove willful criminals from the arguments of
ignorance and loss of control which
they relish in the courts.
It would allow minors, whatever they
undergo, to be end to end actors of their destiny and representatives
of justice.
It would place them in the position of
representative of the law instead of having to justify their
actions.
The population (victims and criminals)
is thus associated with the establishment of legality.
This is the principle of democracy.
3)- Ordinary bonds
The law must note and provide that part
of the sexual activity of couples, or groups, does not arise
only from the spontaneity of amorous
transports, the unpredictable, desires.
It is also usually subject to certain
legal obligations.
1- The example of the condom:
The association of the practice of the
sexual act with the technical legal device of the installation of
the condom is now well known by all.
In fact, young couples have learned to
take this detour at the precise moment of the act, in
competition with desire.
They have to plan it, buy it, install
it, it's not in love, it's technical and legal.
Failure to comply with this practice
can lead to criminal proceedings and convictions because it can
be harmful; even fatal, for some
partners.
2- General sexual availability
In a sexual relationship, the law
already requires adult partners to know the threshold of the sexual
availability of their partners.
Thus, Article 222-24 of the Penal Code
provides that knowledge of particular facts about the partner
involves the adult in a criminal
process.
"Rape is punished by twenty years
of criminal imprisonment:
3 ° When it is committed on a person
whose particular vulnerability, due to his age, to an illness, an
infirmity, a physical or mental
deficiency or a state of pregnancy, is apparent or known to the
perpetrator;
3 ° bis When it is committed on a
person whose particular vulnerability or dependence resulting
from the precariousness of his economic
or social situation is apparent or known to the perpetrator;
The entanglement of sexual intercourse
in legal proceedings is therefore nothing new.
4)- The contractual form of the sexual
relationship between minors and adults
1- The contract
From the moment it is a question of
sexual action (penetration (oral, vaginal, anal, touching the
erogenous zones, actions aimed at
arousing or satisfying sexual desire), between two people who
are not in a homogeneous legal space (
a minor and an adult), both parties are involved in a
contractual relationship; regardless of
the number that makes up each of the parties.
2- The legal ages of control
The age of control over sexuality by a
minor is set by law.
The sexual action of an adult with a
minor is immediately contractual and falls under the
jurisdiction of the Penal Code:
a- For minors of 15 years, the report
is illegal.
b- For minors aged 15 to 18, it is
subject to expressly penal conditions.
3- Places in the contract
The place of the minor and the adult is
not identical in law in this relationship.
The partners are equal in law in the
joint action but they are not in responsibility.
a- The adult is always responsible
towards the minor. He cannot lead him to lie or use his agreement to
break the law.
b- The minor is bound only to honesty
and truth; subject to the circumstances.
4- The respective obligations
a- During a sexual relationship, both
parties are therefore required to decline their respective places
in this contract.
b- The middle finger:
He must say his age and ask the minor
for his.
He cannot claim not to have said his
age or not to have asked for it, since it is the law.
The law can even provide that the adult
requires proof of age.
c- The minor must state his age.
The partner may be required to provide
proof of this.
He must say yes or no to each sexual
sequence.
5)- The contractual agreement
The law is made to state the
contractuality of an activity, to define its rules and to guarantee
their
respect.
The law can only be respected if both
parties have an informed knowledge of the two essential legal
provisions of sexual relations between adults and minors: consent and
age.
6)-– Consent
With age, consent is one of the two
components of the legality of the contract.
1- Between two people of unequal
status, compliance with contractual rules cannot be deduced
from the side manifestations of this
presumed agreement.
It is not because the minor follows his
partner that he expresses his agreement, nor because he
undresses or lets himself be done.
Astonishment, fear, incomprehension,
ignorance, can be legitimately assumed.
The unequal training of adults and
minors does not allow us to say that tacit agreement refers each to
his own personal responsibilities.
In principle, the adult can handle the
minor even if the latter has the right training for his age.
2- The magistrates consider that the
consent of the minor, like that of the adult, can be tacit.
There is therefore a legal necessity
for consent which tacit does not invalidate.
3- If the silence of the partners is
equivalent to tacit consent.
It becomes plausible to consider that
the ignorance of the age of a young partner by an adult is for
the latter a tacit refusal to question
this age and entails on the part of the adult the acceptance of
being illegal. and suffer the
consequences.
4- The only possible legality of
consent is its explicit and informed expression
In all cases, this expression requires
the verb.
5- In marriage or PACS, consent is said
and signed.
Yet both partners are by nature
considered tacit consent to their union.
The law nevertheless considers that it
must be said and signed to be enforceable in all
circumstances.
The signature is required because this
contract does not bind only the wedding night and its
rehearsals.
6- In a purely sexual relationship
between persons of unequal legal capacities but not engaging in any
particular social activity, the consent relates only to the act and
the personal links.
It can therefore be simply verbal.
However, it cannot be satisfied with
being tacit because the two parties are not considered equally
capable of understanding its terms.
7- The adult is supposed not to ignore
the law.
He knows that the sexual relations to
which he contributes are subject to legal rules, including
consent.
If he does not obtain this explicit and
informed consent, then it is a ruse and rape is constituted.
Within the meaning of Article 222-23 of
the penal code:
"Any act of sexual penetration, of
whatever nature, committed on the person of another or on the
person of the perpetrator by violence,
coercion, threat or surprise is rape."
8- This consent and its verbalization
must be required for any sexual act and a fortiori for each
penetration. Indeed, each sexual
innovation can be a surprise or a constraint, even new, for the
minor partner.
7)- Random certainties of age
It seems to go without saying that age
is an indisputable fact and that it can be ascertained at any
time; after the fact, for example.
The facts show that it is not.
1- The criminals cited by the media,
aged 28 and 22, acquitted, did not only affirm that they had had the
tacit consent of their prey.
They first claimed that they had
confused a 10-year-old child with a 17-year-old, or even 18-year-
old girl, therefore major.
One of them even declared that he is
the father of a family and that he is insulted by being supposed to
be able to fuck a child.
2- These children therefore had, at
least in the public, the qualification of the triple fault:
They formulated tacit consent.
b- They are their age.
c- They returned to their tacit
commitments after the act before the courts.
For a little, they would be liable to
contempt of court.
3- The judgments are therefore
explicitly based on the tacit wording of the contractual agreement
concerning age and consent.
a- We do not therefore answer the
question posed by these statements by the sole prohibition of
sexual relations with minors of 15
years or 13 years.
b- Once again, it will be enough to
indict the adolescents for lying by tacit agreement.
c- This debate on age has its relevance
but only it renews ignorance and its maneuvers.
8)- Legal democracy
Along with the question of the age of
sexual capacity and consent, it is therefore necessary to settle
the question of the knowledge of this
age by unequal partners and the certainty of their consent.
The facts show that the ideology of the
marvelous of love, of the implicit, of silent complicity, of
desire, etc., is not sufficient to
produce the certainty which is the basis of legality; either that it
llows or that it prohibits.
a- This declaration of age is a
contractual obligation just as much as that of consent.
b- It turns out that the only way to
ensure that partners know each other's age is to ask and tell each
other.
c- This dialogue cannot be tacit,
implicit, obvious. It must go through the verb and what can support
it materially.
d- For age, the verb can be supported
by the production of an identity document or marks of
acquired knowledge related to such age.
e- The adult is responsible for
questioning.
9)- Passion and the law
It is not admissible to claim that such
a contractual obligation would be disturbing for romantic
debates.
From the moment an adult man (because
it is essentially them) presents his sex to a person, even
consenting, who seems young to him, he
must worry about the legality of the contractual
relationship that he immediately
establishes with that person.
The rod is not a source of law but a
support of public law.
10)- The fetish word
One of the favorite terms of young
people of the new generations is the word "pedophilia", and
its variations.
Young people have appropriated it and
are playing with it.
It is for them a manifestation of
power.
This term has this magic that it places
the police, the force, on their side.
It was a step in the public
installation of their rights.
Today, we must therefore add two other
fetish terms: their age and the "yes" and "no" of
consent
expressed in the name of the law, the
police, the gendarmes, the judges.
a- The enunciation of their age and the
“no” of refusal as well as the “yes” of acquiescence, even
forced, are no longer a frontal cry
launched into the void but a play in a legal process.
b- It is the instantaneous construction
of a contractual relationship and the legal obligation of the
partner, voluntarily or under duress,
of this contract.
c- It is both the opening of a dialogue
and the initiation of a public procedure.
d- The law must stipulate that the only
words that are age, yes and no, are sufficient to establish a
legal relationship.
11)– utility
1- The unspoken age
The tacit age is that decided by the
adult.
Silence about age is the submission of
the minor to the will of the adult.
It is considered obvious that his
judicial exploitation would be the legal property of the aggressor.
The aggressors say that they not only
ignore but cannot imagine the real age of their prey.
The fault becomes an argument of
legality of their action.
The legalization of silence by tacit
agreement is a centerpiece of the subjection of minors to sexual
maneuvers by adults.
2- verbalized age
Simply saying his age may not allow the
minor to prevent the crime.
This would not prevent Monsieur from
driving a 10-year-old girl, for example, to her apartment to
do her good.
On the other hand, that would prevent
Monsieur from telling the police officers and then the judges,
that he believed in all good faith that
this young girl gave the impression that she was a mature
woman.
Verbal, public knowledge of age ensures
the present illegality of the thing, the knowledge of it by
he culprit, and the subsequent judgment
of the latter.
The obligation to state its age and to
know that of its prey already eliminates a certain number of
predators.
It places others in a position of moral
and judicial weakness.
It is a reversal of the situation.
It is no longer for the miners to
wonder why they let it be.
It is up to the adult to explain why he
continued to do so knowingly.
2- Consent
The obligation to obtain the consent of
the minor to each type of sexual action would not prevent an
honest father from hugging this girl
but would put him under the obligation to point out the
inequality of the relationship, the
attention of the law, and constantly give the child a voice.
3- It's a weapon:
a- In the hands of minors.
It would be enough for them to say
their age to deprive the adult of the right to pretend confusion
and to say no to certify the crime.
b- In the hands of the judges
Justice could work with both parties to
review the operation of the contract.
The imagination of an age or else the
guessing of consent would no longer be admissible or innocent.
They would become elements of cunning.
12)- Word learning
Minors are not supposed to know what to
say. They have to learn it.
a- It is therefore necessary that the
contractual nature of sexual relations and the legal obligations
they entail become a constitutive
element of school knowledge and of the culture of children and
adolescents.
b- In their relationships with adults,
they must know that when it comes to sexuality, they must ask
them to verbally say their age and
their consent to each particular sequence and that they themselves
can take it the initiative.
13)– Bill
1- Sexual relations between adults and
minors have a contractual form which requires formal,
verbal, honest and reciprocal
declarations.
2- The adult has the obligation to
formally ask his or her minor partner (s) of both sexes:
a- The age stated verbally, clearly,
honestly. He can ask for details.
b- Formal consent to the reports and to
each sequence thereof.
c- He cannot pretend to ignore these
elements.
3- The adult is responsible for the
accuracy of the minor's declarations.
4- The adult being deemed not to ignore
the law, he conducts himself according to what he cannot
ignore.
3- The minor has a duty of honesty.
14)– Conclusion
To qualify the questioning of consent
and age as legal amounts to making “I have such an age” and
“No” or “Yes” as procedural
elements.
This would allow, for example, a minor
at the time of the facts to lodge a complaint on the sole
ground that the questions were not
asked in their legal form or that the answers expressed in the
same form were not heard.
From this complaint relating to the
procedure, the minor party can hire a lawyer, including through
Legal Aid, the judicial police officers
can make the major party bear the first questioning of the
facts, the public prosecutor Republic
can initiate proceedings.
Accounts of the trauma would come after
the complaint was filed.
Marc SALOMONE
