The Contrafatto Affair: Law, Judicial Risk, and Consent

Abstract

In Paris, France on October 15, 1827, 28-year old Sicilian priest Joseph Contrafatto was sentenced for raping 5-year old Hortense Le Bon. This article frames the rhetorical strategies of the prosecution and defense using Robert Cover’s notion of judicial innovation, developed in his Justice Accused. Both sides based their arguments on articles 331 and 332 of the Criminal code. The Contrafatto Affair was an extraordinary case for rape legislation; it was among the first if not the first trial in France when a perpetrator of attentat à la pudeur avec violence (violent, indecent assault), was sentenced and found guilty when the prosecution used the argument of la violence morale (a type of coercion or abuse of an individual’s trust or naivety) when the victim suffered no physical signs of violence. Later, la violence morale and the requirement of consent became constitutive parts of the rape statutes by 1853 (for children) and 1857 (for adults), which this article develops through contextualizing law, rhetoric, and interpretation. The background of the trial provides an overview of certain procedures and protocols of 19th-century France. An examination of the jurisprudence related to attentat à la pudeur sans violence (non-violent, indecent assault, art. 331), attentat à la pudeur avec violence and la violence morale will highlight how forward-looking and risky the prosecution’s arguments were in his interpretation of article 332.