Uncovering French gender-based violence and harassment legislation enforcement

Marie Mercat-Bruns is Affiliated Professor at the Sciences Po Law School and a tenured Associate Law Professor in Private Law and in Labour and Employment Law at the Conservatoire National des Arts et Métiers (CNAM). She discusses sexual  harassment and gendered violence in the context of French law, and explains how organisations can take action. An interview.

When did legislation on sexual harassment and gendered violence first develop in France?

It is a 1980 law that first qualified rape as a crime. Today it is included in article 223-23 of the French Penal Code. Since then, a whole series of laws have extended the criminal and civil law framework against sexual harassment and violence. However, it was not until August 6, 2012 that a law on sexual harassment precisely defined for the first time in France the two main forms of sexual harassment in criminal law, but also in labour law. Sexual harassment can be an act which is not necessarily repeated of “sexual blackmail” or quid pro quo harassment, but also of a more widespread, less known and more insidious form, which is not necessarily linked to a sexual act, in other words: repeated acts of harassment that create a hostile environment.

According to article 222-33 of the French Penal Code (see also article L 1153-1 of the Labour Code):

I. Sexual harassment means imposing on someone, in a repeated way, words or actions that have a sexual connotation and that either undermine his/her dignity by reason of their degrading or humiliating nature, or create an intimidating, hostile or offensive situation (first form)

The offense also exists:

1 ° When these comments or behaviours are imposed on the same victim by several people, in concert or at the instigation of one of them, even though each of these people has not acted repeatedly;

2 ° When these comments or behaviors are imposed on the same victim, successively, by several people who, even in the absence of consultation, know that these comments or behaviours characterise a repetition.

II. Shall be assimilated to sexual harassment the fact, even where there is no repetition, of using any form of serious pressure with the real or apparent aim of obtaining an act of a sexual nature, whether for the benefit of the author of the action himself/herself or for that of  a third party (second form)

III. On the penal side, “The facts mentioned in I and II above are punished by two years of imprisonment and a fine of 30,000 Euros. These sentences can be increased up to three years of imprisonment and a fine of 45,000 Euros when the facts are committed: 1° by a person who abuses the authority vested upon him/her by virtue of his/her duties; 2°against a person under 15 years of age; 3° against a person whose particular vulnerability – due to age, illness, infirmity, physical or psychological disability or pregnancy – is apparent and known to the offender; 4° against a person whose particular vulnerability or dependence resulting from a precarious economic or social situation is apparent or known to the offender; 5° by a number of persons acting as offenders or accomplices; 6° by the use of a communication service to the public online or by means of a digital or electronic medium; 7° while a minor was present and attended; 8° by an ascendant or by any other person having legal or de facto authority over the victim”

Sexist acts were added in the French Labour Code through the so-called “Rebsamen” Law of August 17, 2015 (article L 1142-261 of the Labour Code) : “no one should be subject to sexist acts, defined as any act associated with the sex of a person, with the aim or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

Two key laws came after the launch of the #MeToo movement. First, Law No. 2018-703 of August 3, 2018, that directly aims “to strengthen the fight against sexual and gender-based violence”. It focuses on four points: the extension of the statute of limitations for sexual crimes committed against minors to 30 years, the strengthening of provisions in the Penal Code to punish sexual offenses against minors, the creation of a fineable offence of “sexist contempt” to repress so-called “street” harassment, and the expansion of the definition of online harassment.

Since January 1, 2019, Law No. 2018-771 of September 5, 2018 has established new obligations for companies and organisations in the fight against sexual harassment and sexist acts: display in the company of the text on sexual harassment and litigation means, designation of a referent "sexual harassment and sexist behaviour" in companies employing at least 250 employees, and designation of a referent "sexual harassment and sexist behaviour" within all the Social and Economic Committees (CSE). It is important to bear in mind that apart from acts of violence, sexual harassment or gender-based acts can lead to civil liability, and in the case of sexual harassment the annulment of acts, in particular dismissal to obtain compensation and reinstatement. Through civil action, these acts do not require proof of an intention to harass and thus benefit from a more favourable evidentiary standard. Therefore criminal justice is not always to be favoured over civil litigation; which is not always understood in the public debate when one evokes the idea of violence…

Finally, the French Minister of Justice and the Secretary of State for Children and Families announced on February 9, 2021 that the governement would introduce an amendment to the legal framework: under the age of 15, any act of sexual penetration committed by an adult would be automatically considered rape - no need to prove the victim's coercion, threat, surprise or violence - by creating an autonomous offense and thus avoiding constitutional censorship.

What is the influence of the European Union in this matter?

As early as 1991, in recommendation 92/131/EEC, the European Commission played a key role in advocating for an extension of the definition of sexual harassment, encompassing the two forms mentioned above, without necessarily there being an abuse of authority. Harassment between colleagues is therefore taken into account. In addition, the European legislation recognises harassment based on sex as a form of discrimination (see Recast Directive 2006/54).

The French definition of sexual harassment is not entirely in line with European law: it refers to a hostile situation (in article 1153-2 of the French Labour Code), very interpersonal, instead of a hostile environment, more systemic.

In France, rules on sexual harassment and discrimination are often perceived as falling under separate legal regimes whereas, according to the European transposition law on discrimination of May 27, 2008, harassment based on sex is discrimination (article 1132-1 of the French Labour Code).

Discriminatory harassment applies to both men and women but also includes racist harassment or harassment based on sexual orientation. Underused in practice, discriminatory harassment has one advantage: it does not require repetition of practices.

Furthermore, two other international standards play a key role for States today requiring additional means of conformity. The Istanbul Convention, adopted by the Council of Europe in 2011, entered into force in 2014, was ratified the same year by France and signed by the European Union in June 2017. This international instrument is special as it demands that ratifying states implement a series of fairly specific and binding standards to prevent gender-based violence, protect victims and punish perpetrators. Finally, the recent International Labour Organisation (ILO) Convention No. 190 on violence and harassment takes into account the particular vulnerability of certain groups of workers who are more exposed to these types of acts and practices.

In France, the law n°2019-1480 of December 28, 2019 aiming to act against violence within the family also seems to require concrete measures in the private sphere. It encompasses the restraining order, the increased use of the ankle bracelet monitor and stricter regulations on access to homes.

What impact has the #MeToo movement had?

After the investigation on Weinstein’s sexual abuse and the launch of the #MeToo movement, on November 25, 2017, the President of France declared “equality between women and men” the “national cause“ of his five-year term with three priorities: education and cultural action promoting equality, increased support for victims, and more effective enforcement. This is what led to the adoption of the provisions of the two laws of 2018 already mentioned. Moreover, legislaton was adopted on December 29 2019 reinforcing the preventive and repressive legal arsenal against sexual violence as part of a general framework combatting domestic and family violence.

The #MeToo movement has made visible the scope and frequency of sexual harassment and sexual and gender-based violence in very diverse settings - employment, education, family, access to housing, health, etc. It made it possible to amend civil law and criminal law. It also allowed, in labour law, to show that sexual harassment could be handled like a professional risk, as part of an objective goal of prevention, like any other risk to the health and safety of workers. It is no longer simply reduced to a subjective, interpersonal issue linked to a specific act in the private sphere which questions the sexual consent of two adults.

However, the public denunciation under the hashtag #MeToo on social media has sometimes not been enough to lead to legal proceedings in criminal courts, due to a lack of details on the perpetrators or the places of the assaults. In addition, as part of the #BalanceTonPorc - in English, #SquealOnYouPig - movement, the libel action had the author of the hashtag convicted of defamation on September 25, 2019. Furthermore, reports showed that people from disenfranchised communities did not always dare using social media for fear of losing their job or of a negative reaction from their relatives and friends. In rural communities, for example, denunciation through social media with no subsequent prosecution may have further exposed the victim to a situation of discomfort and isolation.

You mentioned the systemic nature of discrimination. Can you tell us more?

Vicki Schultz, a professor at Yale University School of Law, shows in her studies that sexual harassment is often not simply the result of an individual relationship. It can be, in some occupational sectors, an instrument of domination at work that increases the gender wage gap and opportunities for promotion of the under-represented sex group. She notes that, as the number of women increases in a service or a professional activity, the incidence of sexual harassment may decrease. Sometimes the phenomenon of sexist behaviour can be part of the corporate culture.

In that respect, it should be understood that sexual harassment, seen as discrimination, often signals an organisation’s atmosphere where there may exist, for example, a gender-based employment segregation and sometimes a glass ceiling maintained in part because of practices of sexual harassment in the sense of “repeatedly imposing on a person comments or behaviour with a sexual or sexist connotation which either undermines his/her dignity because of their degrading or humiliating character, or creates against him/her an intimidating, hostile or offensive situation” (article L 1153-1 of the French Labour Code).

Can organisations prevent sexual harassment and gender-based violence?

Yes. Organisations have an obligation to prevent sexual harassment, discrimination, and gender-based violence. As an employer, they have an obligation of safety towards their employees. Since the law of August 8, 2016, in addition to violence, sexist acts are part of the risks that employers must take into account when planning preventive measures to  thwart occupational risks (article 4121-2 of the Labour Code). This concretely means that the inaction of any organisation, whatever its nature, in the face of rumours or anonymous letters is reprehensible. Any act of retaliation in the face of a denunciation is a fortiori prohibited. Actions should be implemented to raise awareness and train employees on this issue. Also a whistleblowing or complaint mechanism should be in place in the event of verbal or non-verbal sexist practices. The intervention of an external body is advisable. Prevention is simply the best guarantee to ensure a healthy training or work environment. Any internal investigation following a complaint must ensure both the safety of the victim and due process rights for the alleged perpetrator.

What about universities?

In France, already in 2018, the Minister of Higher Education and the Secretary of State in charge of Equality between Women and Men launched an awareness raising campaign on sexual and gender-based violence in higher education. The idea was to create, within each university, a monitoring unit allowing all victims, all survivors, to be supported.

Other countries, particularly in Latin America, have taken the opportunity to produce spaces for dialogue in universities on these issues. These spaces are built in-house, outside of human resources and management services, with researchers who work on feminist issues and who have participated in the development of internal standards.

More

• Marie Mercat-Bruns is Affiliated Professor at Sciences Po Law School and a tenured Associate Law Professor in Private Law and in Labor and Employment Law at the Conservatoire National des Arts et Métiers (CNAM)
• Marie Mercat-Bruns’ paper in The Global #MeToo Movement : “The #MeToo Movement in France : a wave of ambivalence”
• Tristin Green’s Lecture at Sciences Po on Discrimination laundering: the rise of organisational innocence
• Sciences Po Law School