Sexual Violence and the French Justice System

Only a small proportion of rape cases are ever brought to trial. Most are closed, some are reclassified as simple sexual assaults. In a book published by the Sciences Po Press, entitled Viol. Que fait la justice? [in English, Rape: What does the justice system do?], Véronique Le Goaziou, a researcher at the Mediterranean Laboratory of Sociology, examines the legal treatment of sexual violence and explores the parameters of restorative justice. Read the interview.

You explain in your book that, for centuries, sexual violence was tolerated in our societies. Why is that?

There are numerous reasons. Firstly, as historians have shown, there was more tolerance for violence in general in the past. In former societies, which were incomparably harsher than our own, people's perceptions of others and of suffering, brutality or death were different to those of today. So much so that acts that we would deem violent might, in those times, have seemed banal or ordinary. The facts and actions themselves have not really changed but our thresholds of sensitivity have, so that today we condemn what would barely have raised eyebrows formerly.
On top of that, the hierarchical societies of the past were deeply unequal ones: men had more rights than women or children and even rights over them. As a consequence, sexual violence, which is (almost) always committed by men against women or minors, was seen as legitimate as one manifestation of male power. That also explains why, for a long time, sexual violence was seen as violating the honour of fathers, husbands or masters, rather than that of the victims themselves. A third reason relates precisely to the position and status of the victim, which has only recently emerged as a figure in our history. For a long time, victims were left out of consideration of sexual cases, or else seen as passive beings bearing the brunt of the shame and more or less suspected of having contributed to the violence committed. Today the opposite is true: victims occupy an unprecedented position in our moral economy and, even if it can seem completely insufficient, in our justice system too. We view victims with compassion and react strongly against any kind of suffering inflicted on others.

Today we are seeing a discrepancy between the strong societal and moral condemnation of sexual violence and its low rate of conviction criminally. Can you tell us a bit more about that?

It is certainly true that, despite the strong general condemnation of sexual violence, crimes of this kind are not often reported or convicted. Complaint rates in France vary between 8% and 15%, according to different sources, which means that the large majority of these offences are never brought to the attention of the judiciary. It will be interesting to see how that trend evolves in the wake of the #MeToo movement. Then of the small number of cases brought to court, only 10 to 15% are tried in the Cour d’assises, France’s criminal court for serious crimes (as opposed to misdemeanours). There are therefore two factors to account for: under-reporting of offences and low rates of criminal prosecution.

The reasons for the first factor are multiple. Various kinds of anxiety can act as a deterrent: fear of reprisals or reactions, fear of sending the perpetrator (often a partner or relative) to prison, reluctance to talk about sexuality, concerns about discrediting oneself or attracting stigma and so on. Victims continue to feel a very strong sense of shame today. It can also be linked to a desire to move on and leave the experience behind, or else to a lack of knowledge about the legal system. There are many and varied reasons that can develop over time, particularly when, for example, a rape is reported several years after it occurred. However, we should not assume that reporting the incident is the only or logical solution to an assault. The fact that so many victims decide not to press charges suggests that they have their own reasons for not doing so. We do not yet have rigorous data on the issue and future research should investigate whether sexual violence goes unreported because of obstacles or inhibitions or because that is what the victims genuinely want – in which case, ought we not to respect their wishes? It may well be a mix of both. Numerous questions arise in relation to a victim’s decision to speak up or otherwise, and what we can or should do with their testimonies.

Why is it that 90% of rapes reported in France are not tried as serious crimes in the criminal Cour d’assises?

The low rate of criminal prosecution in France has come under heavy criticism because it gives the impression of an overly lenient justice system, even a denial of justice. Once again, there are multiple reasons for the low prosecution rate, starting with the principles that govern French criminal law: the principle of impartiality, the principle of audi alteram partem and, of course, the presumption of innocence. Sexual offences are often hard to prove and if the facts cannot be established with sufficient certainty, the case will not be tried as a criminal lawsuit. That is to say nothing of the state of the French justice system’s finances, which are drastically underfunded – hence the length of proceedings and the files piling up on magistrate’s desks.

This makes things extremely challenging for the victims who do report their perpetrators because the legal procedure they face will be long, onerous and sometimes even brutal. On the other hand, the justice system is not a machine. It has to hear both parties: the word of one and the word of another, as we often say, in order to arrive at a kind of “judicial truth” that can fall very far from the victim’s own – and from that of the alleged perpetrator too. The central challenge is to balance the needs of the victims calling for justice to be served and the rights of the people suspected of committing such and such a crime. So, looking at things in the other direction, the low rate of criminal conviction might also help to explain the under-reporting of sexual violence: victims show a wariness of entering into a procedure that will not ultimately reward their pains.

Are there alternatives to a criminal lawsuit?

The issue is to determine what we are aiming for in the fight against sexual violence. The goal of the criminal justice system is to establish the facts and punish the perpetrator, but that is only part of the fight. There are at least three other aspects: protecting and supporting the victims, helping them to resume an ordinary and safe life and preventing further sexual violence through education and awareness-raising. None of these are things that the justice system can do. Its function is not to protect victims – even if it can take measures to do so. Yet in cases of sexual violence by a relative, for example, which are the most common kind, protection of the victim is exactly what is needed. In reality, most victims who file complaints against a partner or parent have very few means to protect themselves against their aggressor. Who can they turn to? Where can they go for protection? There are too few shelters, for instance. Fortunately, there are voluntary organisations able to provide help and advice but very often victims find themselves fending for themselves.

As for returning to ordinary life, regaining self-confidence, re-establishing links with others, in other words, recovering: all of these demand long-term work on the part of victims and they must be able to get support along the way. Finally, with regards to prevention, we are still a long way from putting intentions into action. Awareness-raising obviously needs to begin with the earliest age groups and discuss our relationships with others, with other people’s bodies, with sexuality, desire, power, etc. At present, the majority of the work is being put into prosecuting the perpetrators and I have seen clearly in my work that this has little or no success. It is time we took a serious look at all other aspects of sexual violence.

More

• Viol que fait la justice ? on the Sciences Po Press website
• This interview is part of a series on sexual violence, read the interviews of Marie Mercat-Bruns, Affiliated Professor at the Sciences Po Law School, and Elissa Mailänder, Associate Professor in history at Sciences Po