Michel Foucault before the commission for penal code review

Antoine Idier

paru dans lundimatin#, le 16 mai 2020

These past few weeks I’ve often been asked about the subject which has taken the name of the “Michel Foucault affair” (even though there was no “affair” to speak of), following the delirious accusations of a right-wing essayist and their circulation without investigation (that is, with complicity).

To tell the truth, at first it seemed unhelpful to waste time clarifying even the few points raised. The facts themselves appeared totally whimsical : a notoriously reactionary accuser who was never close to Foucault, dates and details which didn’t match up, the absence of any witnesses, clichés straight from witch hunts (cemeteries at midnight), etc. I thought that journalists would soon investigate the source (What did you see ? When ? What proof can you share ?) and that the story would just as soon collapse.

We see here simillar mechanisms to those at play in the “Guy Hocquenghem affair” : the hatred of May 68 and the left, homophobia, the instrumentalization of childhood and the accusation of “pedophilia”, the obsession with a deviant intelligentsia and the “freemasons of vice”, etc. Although here it goes further : the accusations play an additional role, serving as a denunciation of Foucault’s thought more generally while at the same time his thought itself becomes proof, the means of corroborating the accusations, however grotesque they are.

The positions Foucault took are readily available, in particular in his interview with Guy Hocquenghem and Jean Danet titled “Sexual Morality and the Law” (though the published version, first in the journal Recherches and then in Foucault’s Dits et écrits, commits errors of attribution in relation to the audio interview that was broadcast — but these are minimal and don’t affect the general sense of the discussion) : they discuss the social and legal structures governing sexuality, consent and the difficulties of assessing it, the word of children, and the late 1970s topic of the problems of sexual rights. They also address psychiatry and psychoanalysis, the creation of “monsters :” individuals who are no longer viewed through their acts or behaviors but defined by a monstrous essence.

You can also read his published lectures at the Collège de France from 1974-5, Abnormal (which influenced The History of Sexuality, Vol. I in numerous aspects), to gauge Foucault’s interest in childhood : it is one of the places where disciplinary power deploys ; parents, doctors and educators were all obsessed with the child’s sexuality. Foucault explains, for example, in the lecture from January 22 1975 :

The masturbator, the child masturbator, is a completely new figure of the nineteenth century (but who can be found at the end of the eighteenth century) and whose field of appearance is the family or even something narrower than the family : his frame of reference is no longer nature and society, as it was for the monster, nor the family and its entourage, as it was for the individual to be corrected. It is a much narrower space. It is the bedroom, the bed, the body ; it is the parents, immediate supervisors, brothers and sisters ; it is the doctor : it is a kind of microcell around the individual and his body. (p. 59)

Later, the philosopher would describe the family, too, as a “space of continuous surveillance” (p. 231) and he focuses on a “series of techniques for more effectively linking the parent’s body to the child’s body in a state of pleasure, or to the child’s body that must be prevented from arriving at the state of pleasure.” (p. 232). Thus :

Beneath these puerilities there is, I think, a very important theme. This is the instruction for the direct, immediate, and constant application of the parents’ bodies to the bodies of their children. Intermediaries disappear, but positively this means that from now on children’s bodies will have to be watched over by the parents’ bodies in a sort of physical clinch. There is extreme closeness, contact, almost mixing ; the urgent folding of the parents’ bodies over their children’s bodies ; the insistent obligation of the gaze, of presence, contiguity, and touch” (p. 232-33)

Still, despite multiple clarifications and investigations — the first of them published by Lundi matin, others notably published (in France) by L’Express and le Nouvel observateur —, the slander persists...

Two points raise questions.

On the one hand, Foucault did in fact sign the famous “Open letter for the revision of certain legislative texts regulating the relations between adults and minors” addressed in 1977 to a commission for penal code review ; he even encouraged and supported it. As I wrote earlier, contrary to certain interpretations currently going around, this open letter demanded that, on the one hand, homosexuality be treated no differently than heterosexuality in the penal code, that is to say the age at which it is possible to consent to a homosexual relationship should be the same for a heterosexual relationship (because it was partially through a differential age of consent that the repression of homosexuality operated : in 1977, the age of consent was 15 for heterosexual relationships, 18 for homosexual relationships). On the other hand, following multiple court cases, the letter demanded that consent be the criterion of determining the legality of romantic and sexual relations : “The signatories of the present letter consider that the complete freedom of the partners of a sexual relationship is the necessary and sufficient condition of the legality of this relationship.” According to the signatories — and therefore including Foucault — ”the provisions claiming to ‘protect’ childhood and youth” are “more and more incompatible with the evolution of our society, and must be repealed or significantly modified, in the direction of recognizing the right of the child and the adolescent to enter into relations with persons of their own choice.” (See my previous text for more details). Consent must therefore be the foundation of any law of sexuality, not morality or “decency.”

On the other hand, following this open letter, Foucault was given a hearing by this commission of penal code review, on May 27, 1977, in the Court of Cassation [one of the supreme courts in the French judicial system, handling civil/criminal cases]. We don’t have access to the text of his hearing but there are detailed notes which were taken by the members of the commission. These are conserved in the archives of the Ministry of Justice and are readily consultable. In my book about the “decriminalization” of homosexuality in France (in reality the overturning of two articles of the penal code that punished certain homosexual relations, notably the one which set a higher age of consent for homosexual relations), Les Alinéas au placard [Articles of the Closet], I became interested in this hearing of Foucault’s. I cited certain unpublished documents, having taken the effort to consult the archives of the commission. Since the book isn’t available, I reproduce certain extracts from it here (with some cuts, this chapter being quite dense...).

* * *

“It appears that the initiative [to speak to the commission of penal code review] goes back to two people, [the lawyer] Alexandre Rozier and Michel Foucault. A few months prior, Alexandre Rozier prepared a five-page text titled “The Offense of Homosexuality,” finished in November 1976, with the intent of addressing it to the commission. It was particularly inspired by a conference held in Amsterdam in 1975, “Sexuality and Legal Repression.” He had tried in vain to publish some excerpts from this study in the press. In a letter from November 24, 1976, the publication director of Le Monde, Jacques Fauvet, justified his rejection, writing that “the subject is not easy to breach in the columns of the paper. It risks backfiring against the very same people who wish for this legislation to fall.” Michel Foucault suggested that the lawyer adapt his text into an open letter to the penal code review commission.

This commission was established by a decree of the French President Valéry Giscard d’Estaing on November 8, 1974. It was “charged with elaborating a preliminary draft of the penal code.” Part of the Ministry of Justice, it had nine members named by the decree of February 27 1975, judges and law professors. It delivered a first report in July 1976 to the Justice Minister : this preliminary draft of a penal code, released as a public document in 1978, treated general points of the penal code. The commission resumed its work in October of 1976 and this time took up the question of offenses and penalties, including those concerning sexuality.

As soon as it was established, André Baudry attempted contact with the commission in the name of Arcadie [the “homophile” association founded in 1954]. In a June 25, 1975 letter, he wrote the president of the commission [...]. Later, Claude Courouve [who ran the Center for Information and Documentation of Homosexualty] took the same approach. Their letters have no reply.

Michel Foucault and Alexandre Rozier imagined an action on a greater scale, and Rozier’s letter allows us to see what they prepared. While the lawyer explained that he had originally wanted to “limit himself to denouncing the incontestable iniquity of article 331 paragraph 3 of the penal code” [the article setting a different age of consent for homosexual relations] the group considered it “imperative that the commission rewrite completely the section of the penal code having to do with indecent behavior.” The first of these points proposed to Michel Foucault in [a letter on the 24th of] January 1977 is the following : “the freedom of both partners in a sexual relationship is the necessary and sufficient basis of the legality of that relationship.” The comments also consider lowering the legal age of consent. The age of puberty, 13 years, is unchanged. This is how the lawyer explained it : “We can consider that below a certain threshold of psychological and physiological maturity, the child is unable to freely give their consent to a sexual relation owing to their intrinsic weakness. Puberty appears to constitute the essential criterion to define the age (13) under which a sexual relationship would be, in itself and in any case, incriminatory. For the age of 13 and 14, the law could provide that the burden of the offense be carried by either the partner of an adolescent or the adolescent of this age, to the extent that there would be on his or her part “initiation” and “corruption,” the presence or absence of this circumstance being left to the decision of the judge on the merits of the case.”

Whatever the case, “every adolescent of more than 15 years is deemed to be capable of freely entering a sexual relationship, since this is already the rule concerning heterosexual relationships. Paragraph 3 of article 331 of the penal code must be repealed.”

It seems important to emphasize that Alexandre Rozier and Michel Foucault, as the philosopher explained in the interview cited previously, wished to give a larger margin of decision to the judge, at the expense of an age fixed by law. This is what Alexandre Rozier wrote regarding the notion of corruption of a minor in article 356 of the penal code : “[it] should be considered a crime to profit from a minors’s lack of psychological maturity to incite or to aid it, against its interest, to rebel against the authority of those who are charged with raising it and who have not been deficient in their responsibilities. There again the trial judge should have a large margin of judgement.”

The articles of the penal code concerning sexuality were taken up by the commision in February 1977. As the archives of the commission show, the first attempts did not go in the sense desired by this group of militant intellectuals.

[...] The relations between the commission and the signatories are made by the intermediation of Alexandre Rozier. He was in contact with Jean-Pierre Sabatier, secretary of the commission, and Germaine Sénéchal, lawyer and member of the commission as of December 1976. Born in 1915 and died in 1993, she was a famous criminal attorney who was notably a part of the group of lawyers defending the civilian parties in the Ben Barka affair [a Moroccan anti-imperialist who was assassinated by French and Moroccan intelligence]. Considered a “left-wing Gaullist”, she stepped down from the commission in 1980 over the government’s refusal to repeal the death penalty. Her precise role in the delierations is difficult to determine, but she was an intermediary for the commission in particular for the hearing with Michel Foucault. He testified before the commission on May 27th 1977, in the Court of Cassation. His presentation, of which the summaries of the court conserve the only trace, is long : the philosopher organizes it in multiple parts, the first concerning the history of law, the second biopolitics, while the third and last is devoted to his proposals for reforming the penal code.

The first part of Foucault’s talk is historical. According to the notes taken by those present, he reminds the listeners that “the end of the 18th century is characterized by a decriminalization of sexual conduct.” This decriminalization is explained by “their strictly private character, the desire of the secular legislator to no longer penalize conduct reproached by religious morality and the freedom left to public opinion to delimit the area safeguarded by “decency”. The translation into law is that “the penal code of 1810 does not retain indecency unless there is a disturbance of public order or an attack on freedom.” However, “starting in the beginning of the 19th century there appears a neoclassical nostalgia of fundamental values recognized by the Declaration of the Rights of Man which tends to pose the same problems in new terms.” The liberalism of the end of the 18th century is thus of short duration. Michel Foucault distinguishes multiple phenomena at work in these juridical changes. For one, a “judicial overheating which is characterized notably by the fivefold expansion of affairs judged as rape and indecency, as much as by a jurisprudential extension following the example of enticement of minors.” For another, “a legislative abundance directly aiming at sexual comportment [which] creates new crimes : homosexual harassment, distinction between public indecency with and without violence, acts with minors at 11, 13, 15, 21 and then 18 years of age, acts between subordinates or superiors or people with authority”.

For Michel Foucault, “this penalization of sexuality is characterized by a return of juridical principles that were fundamental to the revolutionary period.” Thus, “the principle according to which sexual relations are a private matter transforms into a legal obligation to conceal them so as to not disturb public order or infringe the freedom of others.” What’s more, “the principle according to which sexual relations can only be criminal absent the consent of one partner leads to the establishment of a presumption of non-consent for certain categories, like minors.” Finally, “the principle according to which the heterodox practices constitute a dangerous sexuality by the risk they might run to others brings the obligation to take all necessary precautions to observe secrecy and not trouble public order.”

In the next part of his talk, Michel Foucault steps back to show that the “juridification of sexuality corresponds to a historical phenomenon that reflects the great axes of our society. It reveals profound processes and complexes that are sometimes irreversible.” He outlines two. The first is “an effect of training due to police surveillance.” According to the meeting notes, “since the 18th century, the ‘police’ sought to control deviance, however minor. Prostitution, heavily criminalized, encouraged surveillance of the social body. Sodomy, which had been the object of legislation that was difficult to prosecute, gave way to the development of a system of anonymous tips and files. In both cases the intervention of the law in sexual relationships created an ecological niche for arbitrary police power.” The second, “more fundamental,” is the development of a biopolitics.” [...] The commission noted the following definition : “political power not only has to do with citizens but also with a population which constitutes a field of biological possibilities ; the state governs life and health, and not only the subjects of laws.” Biopolitics has to do directly with law concerning sexuality because “in this context two important figures appear : childhood, the space of the most visible manifestations of vulnerability, and sexuality, the center of a biopolitics of population (demography, venereal disease, heredity).” “So we pass, adds Michel Foucault, from a private sexuality to a movement tending toward its juridification around a theme of health, the future, and the development of the human.”

How to think of the law concerning sexuality, then ? This is the last part of Foucault’s talk, who explains (still drawn from the meeting notes) : “The intervention of the law is justified no longer in reference to a “public order” or a “social decency” to protect but because certain manifestations of sexuality are suspected of damaging the physical or mental health of the population. Until the end of the 19th century, this “vulnerability” will appear essentially in disorder resulting from the violent or seductive intervention of one person on another ; but subsequently, a more thorough analysis has shown that sexuality is as vulnerable to symbolic experiences as real ones and to prohibitions as well as incitements, that its desires are naturally polymorphous and it has since been very difficult to foresee the disorder resulting from any given conduct. Thus it is necessary to redefine the categories of the population that must be protected.”

This protection is envisaged by Foucault in two forms. At first, “the problem is posed of knowing if the citizens in general must be protected from certain manifestations of sexuality.” Because of a “revolution tending [...] to admit all forms of sexuality, it is advisable to “depenalize” outrages against public morals and to decriminalize public indecency.” These, specifies the philosopher, “should not be criminalized except if they carry an intentional element and have the effect of bearing prejudice against certain people like children”.

And, in effect, in the next case, “the problem poses itself of the modalities of protection for certain categories of the population : women, children, people with physical or mental disabilities.” Regarding women, Michel Foucault invites [the commission] “not to over-penalize rape in comparison with violent assault.” He therefore asks that “all forms of sexual violence [be] provided for and punished by a single text ; it would be up to the courts to determine the applicable punishment taking into account, in particular, the nature of the behavior, the number of perpetrators, and the relationship to the victim”.

What about children ? For Foucault, these represent a “specific category calling for particular protection.” Nevertheless, the “current system of ‘over-protection’ is not satisfactory, the law not taking into account the sexuality of the child itself, who is in this respect a subject and not a pure object ; the wounds resulting from prohibitions ; of the ‘disenfranchisement’ of the child by the apparatus of consumption, mass media, sexual education, etc.” He adds : “the false presumption that the minor is not a sexual person is to be rejected, just the same as the excessive assimilation of acts committed with children and to children. In this regard there should be a distinction between behaviors that result from violence or intimidation, and of those consented to by the victim.” Finally, “this qualified but absolute over-protection must be retained for minors of 13 years of age, though the judge may nevertheless, beyond that threshold, assess an appropriate sentence.” Equally, “people with disabilities must, in their sexuality, be protected from all violence or constraint.” Before going on to the discussion, the meeting notes conclude : “In short, the future penal code does not have to prohibit “indecency” or assure a “moral order” : legislation must only protect sexuality as a function of the essential rights of the individual to neither suffer prohibition, violence or harm.”

[...] The handwritten notes which accompany the minutes indicate that the discussion had in large part rested on the status of the child. For one of those present, the “problem of consent for children is not easy” and he is “not in favor of the subjective assessment of consent.” Another asks : “How could you ascertain the free consent of a child ?” The notes indicate that Foucault recognizes that the “consent of the child is truly difficult to discern” and his research is “delicate,” “but it cannot be preferable to a principle of law.” In describing the “uncertainties of consent,’ he prefers an arbitrary decision from a judge to an arbitrary decision by law.”

(Note that the prelimiary draft of the penal code published in 1980 specifies, commenting on the articles on public indecency (articles 12221 and 12222) : “the commission has not believed it could have left in place the distinction made by the current penal code between heterosexual and homosexual behavior ; broadening the definition of rape implied a partial depenalization of homosexuality that was supported by the rarity of criminal prosecutions. Without delivering a value judgment on the relative noxiousness of relations according to which are “natural” or “unnatural,” the commission has preferred to protect in an equal manner all minors of less than 15 years.”

As for the protection of children, “the commission has come to believe that their state of lower resistance, their relative incapacity to freely consent and the effects of certain behaviors on their future make children a specific category calling for a particular protection ; however, the problem remained of knowing for which acts and until which age it was required to extend that protection to adolescents [...] The commission has decided to unify and simplify the implementation of the over-protection of children from the double point of view of its area of application and the age of the victim ; this was fixed at 15 years to take into account the evolution of morals and the fact that the physical maturity of adolescents precedes psychological maturity .”

But this planned penal code would never be submitted to the Parliament. The turn to security undertaken by Valéry Giscard d’Estaing and his prime minister Raymond Barre is very far from the reformist impulses of the beginning of his term. If the desire to modify the penal code was not totally abandoned, it became a question of modifying it in a much more repressive sense, which the law of “security and liberty” is testimony, adopted in June 1980. The commision of penal code review is thus put to bed at the beginning of 1981.

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