Cet article propose de s’intéresser à l’articulation juridique faite dès la loi de 1832 entre consentement et discernement chez l’enfant. Sujet d’actualité, le consentement du mineur a récemment fait l’objet de nombreux débats politiques et sociétaux, conduisant à un nouveau projet de loi. L’article s’attache à présenter dans un premier temps les fondements historiques du consentement et du discernement ainsi que leurs évolutions dans un contexte théorique impliquant depuis le début du xx^e, les nouvelles avancées de la psychanalyse en matière de sexualité infantile. Nous verrons que ces deux termes, consentement et discernement, définis objectivement par la justice au moyen de l’âge, ne disent rien des raisons qui poussent un enfant à consentir. Ces deux principes régulièrement convoqués dans la justice des mineurs sont déterminants pour la recherche d’une responsabilité du sujet. Nous essaierons d’en cerner les contours subjectifs au-delà de l’objectivité attendue par les juges. Car, en effet, la dimension subjective occultée ampute le caractère singulier de toute action du sujet. Elle est pourtant essentielle à considérer dans l’acte posé par un mineur. Pour éviter cela, le juge peut demander une expertise psychologique, seule capable dans le système judiciaire actuel d’en déterminer les coordonnées subjectives. À partir de l’expertise de Lucie ordonnée en raison de dénonciation d’actes sexuels, nous souhaitons mettre en lumière les déterminants d’une causalité psychique et rendre compte des raisons singulières pour lesquelles un enfant consent à dire « oui », selon le mot de Lucie.

This article proposes to take an interest in the legal articulation of the law of 1832 between consent and discernment in children. Topical subject, the minor's consent has recently been the subject of many political and societal debates, leading to a new bill. Soon, in fact, the determination of a threshold, 15 years, will prevent the responsibility of a child is engaged. In the course of history, consent has been amended several times. Involving issues related to sexuality, it sparked lively discussions especially for some movements questioning the decriminalization of sexual relations for minors. We will first approach the consent while bringing it closer to the discernment since the law of 1832 brings them together. Our purpose attempts to demonstrate that consent in addition to its objective dimension offers the possibilité of a subjective approach based on the subject's word as the new law authorizes it. Would not these two principles lead the minor to greater responsibility, that is, to try to say at best what he or she was caught up in? To give a place to the word of the child to his relation to language is this not an opportunity to bring out a subjective dimension to the events lived by the subject? It is therefore a question of following him, of going to meet what he has agreed to, of accompanying him to a word where he can say something of the way he let himself be taken by what has arisen, beyond the description of the traumatic scene. This will require us secondarily to consider the relationship of the minor subject to sexuality as Freud showed us. Very early maternal stimulations awaken in him some sensations related to sexuality. But there is a distinction between the fantasmatic part of the child taken in his relationship with the Other and the reality at play in acts of sexual aggression. It is first through the drive game that the child is caught in the desire to respond to the request of another and most often experiences some difficulty in expressing a refusal. The challenge of the expertise will be to find out what the child consents because his behavior alone can not explain the substance. The latter appears rather as a symptom that speaks for him. Finally, since the law of 1945, the judge seeks to individualize his decision from consent and discernment. In order to better understand them, he uses the expertise to give a subjective dimension to the word of the child and establish it at the heart of an educational system rather than repressive. However, the wide opening of the use by the judges of discernment from its objective valence risks provoking in the long term a shift, a porosity between the rights of the child and the adult right, a confusion where everything would be possible in a generational indifference. If discernment opens rights to the child, it also entails risks whose effects must be measured. This is not without questioning the responsibility of the minor from the subjective reasons that led to the consent. More than a policy of the choice of discernment on the basis of objective facts, it is advisable to orient the debates on the subjective roots, that is to say that which governs the choice of the subject. The article tends to show that there is an ambiguity between consent and discernment insofar as the two involve a presence of the objectivity of the facts as much as a subject of the unconscious, ie subjective issues, because our actions can be clearly influenced by formations of the unconscious. By way of conclusion is proposed the expertise of Lucie, young minor victim of an assault by a boy of his entourage, ordered by the judge because of a denunciation of sexual acts. This example tries to hightlight the determinants of psychic causality from the subject's words by reflecting on the subject of consent and discernment. Lucie testifies to the way she consents to the will of the other without appealing to her critical judgment. Guilty of having said yes to the boy who took him to a place where he abused her, unable to discern where it was going to lead her, she spreads her truth by showing how by opting most often for the sense of Other against herself, she finds herself a victim of sexual abuse. Going to the meeting of what represents the subject from his enunciation gives him the opportunity to become the author of his word in what made him the victim of another and thus to bring out also what could allow him to defend yourself.