context: Only YES means YES? Film as a contribution to § 190

Yes and no are the pieces we always learn first, along with “thank you” and “sorry.” From children, and later also in any foreign language. They are the basic dictionary of our communication with other people, they are so fundamental that we practice them early and we understand them physically. However, according to the popular saying, “yes” and “no” are the words that require the most thought before being spoken. This means that while both words are impulsive and negotiable, their ramifications in the public sphere are serious when it comes to binding decisions, which may even take the form of judgment.

When a “only yes means yes” solution is required, especially by feminists, for the revision of § 190, it is important to consider what really can be “solved” with it. Personally, socially and legally. Because the thing has a few hooks. To what extent is it shown in a current French feature film that uses a case study to highlight the cliffs of jurisprudence in the area of ​​sexual criminal law. Even the title “Les chooses humaines” (Yvan Atal, F 2021) makes reference to the anthropological dimension of sexuality and violence. Unlike the monstrous hyperbole reality TV starring Johnny Depp and Amber Heard, as a viewer you are involved in a lawsuit that sensitizes you to what justice can and cannot do.

Human things

“Les chooses humaines” is based on the novel by Karine Tuil (2019) of the same title, which in turn takes up a real incident. It focuses on the incidents of the rape lawsuit, which is first narrated as an experience between two young people and then as a court case at the time after #metoo. The film is set in the cosmos of two environments: the bourgeois Jewish-Orthodox family, from which the 16-year-old Mila comes, and the libertine, chauvinist, emancipated upper class, from which the student Alexandre comes. (Ben Atal, son of the director and Charlotte Gainsbourg, who is also his mother in the film). Both families are related: the father of the plaintiff and the mother of the accused are a couple and thanks to them young people get to know each other.

The morning after they go to the party, Alexandre is arrested; Mila reported to him that he raped her. Then everyone’s world falls apart: terror, misunderstanding, denial, parental alienation, and then gradual weakening of the accused and plaintiff in a public trial of witnesses in which the details of the ten-minute “scandal” are repeated and must be explained again in order to determine the guilt or the innocence of the perpetrator. The crux of the matter is the plausibility of his claim that he did not know and did not realize that she did not want what he was doing, and the plausibility of her claim that she did not really want it, even though she did not say no. There was no “no”, there was no “yes”. Would dissolution of consent help in such cases?

The process also exhausts the claimant. Here: Mila and her lawyer. (“Les chooses the humaines” movie scene, F 2021)

In the film, the process goes on for years, the media provides the usual support, the father of the accused is a famous TV presenter and womanizer. After three years, just before the final quarrels, the defendant’s mother meets the plaintiff’s father for the first time and they make peace. Your mother utters an unusual phrase that sticks in your memory alongside brilliant requests. She says it all seems like a huge loss to two young lives. There can be no winners, it is ruled out, both lives are destroyed. An NZZ reviewer complains that the film’s characters are too clichéd, but that’s not the point. Of course, the environments are somehow typical, you can see a lesson in the bourgeois reality from which it comes from in the film. Stereotype is a structure of argumentation in the procedure and the entire process, which shows that it does not matter at all whether the reason NO, YES or Not he said yes. The evidence is too scarce when the statement contradicts the statement. It wasn’t about what they said enough either, their background and gender perspectives were too different to find a common truth. The longer the process took, the less it was.

How could it be otherwise?

A good didactic film invites you to ask how it could have happened differently, but does not say how. Wouldn’t it be harmful if the parents looked at their son more critically? Generally speaking, if parents knew what parties their children were celebrating, what kind of vileness would young men incite when under the influence of alcohol? What if Mila had sought out-of-court proceedings instead of complaining? What if, instead of going to the police in the morning, she confronted her perpetrator / rapist with a lawyer and demanded satisfaction? Because the worst and darkest point in reaching the truth in a rape trial is the forced public disclosure of details in the witness stand, where it is about recognizing the sexual act as violence “against the recognizable will of the plaintiff”. This is where the intimate zone begins, which in retrospect is unbearable for many rape cases that begin voluntarily. Since sexuality is not only about external actions, it includes excitement, shame, curiosity, aggression, feelings that are manifested both externally and internally. Therefore, the sexual act can be described with the greatest precision: what is psychologically connected with it, what is experienced, what is aimed or “recognizably desirable” can never be fully defined.

The video also shows that: at the jurisdiction level, it tracks Mila’s lawsuit and announces Alexandre’s guilt. The conviction is preceded by the final arguments of the lawyer Mila and the lawyer Alexandre, the public defense attorney. While the lawyer demands justice for all female victims of male violence, by arguing politically, the attorney makes a legal theoretical objection: If the jury, as representatives of society, pleads “guilty” in the case, it puts the morality of the case above truth. And the truth in this case is that the truth cannot be established. It is possible to morally judge Alexandre as unscrupulous, arrogant and courageous, but that is not enough to denounce him as a rapist and thus a criminal if evidence is missing. “Yes,” says Alexandre, “I was wrong, but I’m not a rapist. I never wanted to hurt her. ” But since this intention also cannot be proved, in case of doubt, the moral judgment of the perpetrator remains. After all, according to the defender’s writings, justice doesn’t stand a chance either.

And “agreement to dissolve”?

The “consent-based solution” implies that sexual acts are only legal if they are consensual. It does not say: it is desirable that it should be so. She says sexuality only then is legal. All other “cases” could therefore go to court. Does it really mean something? The #metoo movement plays an important role in this. The heroine of the film was already actively involved in it before she met Alexandre. It’s a reference in the film to another conflict that many judgments have: after all, nearly a third of rape suits are the result of the humiliation, fear, and feelings of revenge that women defend against the general or specific injustice they experience from men. There is no doubt that they are suffering or have suffered and have been humiliated. Revenge is also associated with justice, as you might even say in the trial of Heard and Depp. The open question is whether going to court is always right and whether the new § 190 does not promise a level of security and satisfaction that the law cannot provide. It is also unclear whether the younger generation, which is trying to deal more fluently with gender roles, is actually interested in more stringent legalization of their sexual relationships. Isn’t it more about seeing sexuality as something fundamentally negotiated for both genders, something that is openly discussed, not just in the form of YES and NO. It takes sex education, schools, parents, media, imagination, and good movies and good discussions about it. In this case, the fact that a vote is something to talk about is already a success of the concern behind this paragraph.


Author’s thematic interests

Silvia Henke is a literary and cultural studies scholar and journalist. He lectures, among others visual culture at the Lucerne School of Art and Design. The subjects of research are art and religion, aesthetic education, and transcultural artistic education. She is fundamentally interested in the contradictions of the present, which also appear in the media landscape, and regularly publishes columns, essays and essays in magazines and anthologies.

An outside group of authors write under “context”. He takes up articles from the media, contradicts them for journalistic or linguistic reasons, and reflects on political and cultural discourses. Silvia Henke, Mathias Knauer, Michel Mettler, Felix Schneider and Beat Sterchi now write regularly.
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The opinions in the articles on Infosperber correspond to the personal judgments of the author.

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