four questions about rape during a gynecological or obstetrical examination

A third member of Elisabeth Borne’s government targeted by rape charges. An investigation was opened after the filing of two rape complaints against Chrysoula Zacharopoulou, the Secretary of State for Development, La Francophonie and International Partnerships, learned franceinfo Wednesday, June 22, confirming information from Marianne. This gynecologist by profession is criticized by two patients for actions performed without their consent during consultations. Can we talk about rape in this context? How to differentiate good medical practices from those punishable by law? Franceinfo takes stock.

1What is rape during a gynecological examination?

L’article 222-23 of the Penal Code defined as rape “any act of sexual penetration, of whatever nature, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, coercion, threat or surprise”. Clearly, two elements constitute rape: there must be an act of penetration (vagina, rectum, mouth), and this must have been committed by violence, constraint, threat or surprise.

The problem is therefore not the gynecological examinations themselves., but “acts of sexual penetration, whether performed digitally or with an object, which are not required by the medical protocol in the specific case of the patient, or which are performed without the patient’s consent”, explains to franceinfo Avi Bitton, a criminal lawyer who regularly defends victims of rape and sexual assault. As part of the charges against Chrysoula Zacharopoulou, the two complainants claim that they had not given their consent before the medical examination.

2What practices are authorized during a gynecological consultation?

In October 2021, the National College of French Gynecologists and Obstetricians (CNGOF) drafted a gynecology or obstetrics consultation charter (in PDF) listing a series of good practices. We read, for example, that “the clinical examination is not systematic”and that he “is preceded by an explanation of its objectives and modalities”. If a third party, such as a medical student, is present, the patient must also provide consent. And all “Any medical gesture or clinical examination carried out by the student is also subject to the agreement of the person being examined”. Article L1111-4 of the Public Health Code moreover precise “that no medical act or treatment may be performed without the free and informed consent of the person and this consent may be withdrawn at any time”.

Regarding the authorized gestures, “the exam may include breast palpation, abdominal palpation, a vaginal examination with a glove or finger cot, and the use of medical devices such as than a speculum or an endovaginal probe. In some cases, the use of a digital rectal examination after explanation may be justified”, also provides for the charter. But these practices must soon be clarified. “Clinical practice guidelines are being drafted and should be ready by the end of the year”assures franceinfo the CNGOF.

3How should the gynecologist collect the patient’s consent?

The CNGOF good practice charter specifies that the consultation in gynecology or obstetrics “is not a consultation like the others since it affects the privacy of patients” and “the woman’s oral agreement is obtained before any clinical examination.” Otherwise, “the examination must be able to be interrupted as soon as the patient expresses the will”.

But this practice could change. “The problematic point in rape cases is the existence of proof of consent, because we are in word against word”notes criminal lawyer Avi Bitton. Among the possible changes, the latter notes that the signature, by the patient, of a written form of consent to the medical examination, as is customary for other types of acts, would make it possible to formalize the collection of the consent of the examined patient.

4Had other women already denounced similar facts?

Yes. In 2014, many women spoke on social networks to denounce the gynecological violence of which they considered themselves victims with the hashtag #PayYourUterus. In June 2018, the High Council for Equality between Women and Men published a report on the “sexist acts during gynecological and obstetrical follow-up”noting that 3.4% of complaints filed with the disciplinary bodies of the College of Physicians in 2016 relate to sexual assault and rape committed by doctors.

In recent years, several gynecologists have also received complaints from a large number of patients. Among them is Professor Emile Daraï, specialist in endometriosis and former head of service at Tenon Hospital (AP-HP), with whom Chrysoula Zacharopoulou worked. He has been under investigation since January 3 for rape charges involving at least 25 patients, which he disputes.