Theory vs practice in the French legal system

TW: In this article, I will talk about sexual, gender-based and administrative violence. Please take this into consideration before choosing to read or not this article.

Article for the letter L (Legal theory) of the project “Feminism from A to Z” presented by Feminist Chapter.

I must admit that I have played a bit with words, with the original instructions, to write this article, I have changed the deal… The original theme was “Legal Theory” but I am not really interested in theories (ironical for a PolHum student, right?). So, in this article, we will look at the gap between theory (laws) and practice in the French legal system. I will particularly focus on how the French judicial system deals with sexual and gender-based violence to link this topic with feminism. 

I/ Dysfunctions at the police stations’ level

In a recent audit of the French government, 90% of the survivors of domestic violence (only women) were satisfied with the way they had been received by police officers. Because of statistics like this one, an important part of the French population thinks that there is no problem with how survivors of sexual and gender-based violence are treated by the current system. The few negative experiences would only be exceptions, small dysfunctions in a perfectly working judicial system. 

However, the reality could not be further away from the result of this audit which was very biased. In this same audit, we can read that 95% of the survivors of violence did not encounter any difficulties to complain at the police station. In fact, we know, thanks to several feminist associations, that article 15-3 of the French Penal procedure code, which states the obligation of policemen to take all complaints, is not respected. 

What are these investigations done by associations? In 2018, the French association, Le groupe F, the ancestor of the current Nous Toutes association, collected and analyzed 500 testimonies during an action called “PayeTaPolice”. The same year, another association called Centre Hubertine Auclert made a survey focused on three different police stations. Finally, in 2021, Nous Toutes analyzed 300 testimonies during the #PrendsMaPlainte action. Of course, these surveys are not perfect, they are not independent and national so their results are limited despite the important amount of testimonies and official reports analyzed. However, no survey/investigation fills all these conditions so let’s be grateful for these associations’ hard work! 

What were the results of these inquiries? If you are interested in this issue and can read French, all the results are available in detail online. The three key elements to remember from these reports are: as we already saw, article 15-3 is not well applied, police officers lack professionalism and they reproduce mechanisms of violence.

The article 15-3 of the French Penal procedure code states that “Les officiers et agents de police judiciaire sont tenus de recevoir les plaintes déposées par les victimes d’infractions à la loi pénale, y compris lorsque ces plaintes sont déposées dans un service ou une unité de police judiciaire territorialement incompétents.”. This could be translated into “Police officers have to receive all the complaints filed by victims of violations of the penal law, including when the complaint is made in a service or unity that is territorially incompetent”. This last element is very important because it means that you can make your complaint in any police station, even if you have been sexually assaulted, for instance, in another region or city. 

Despite this article, according to the action “#PrendsMaPlainte”, between 2019 and 2021, 53% have said that they had experienced a refusal of their complaint. And it was 55% for the survivors of domestic violence. In the different investigations, we can also observe a lack of professionalism toward the survivors of violence. The complaints are not correctly written (lack of important information, not the right vocabulary…), the police officers do not correctly evaluate the danger and there is a lack of confidentiality for the survivors of violence (they have to describe the violence that they have experienced with people around, no dedicated room or they are called by their name in front of everyone like this: “Hey Mme Durand is here to tell us how her rape happened”). 

Finally, policemen reproduce well-known mechanisms of violence. For instance, they banalize violent acts, they blame the survivors of violence, they make sexist jokes or remarks, or they are on the perpetrator of violence’s side. Here is a summary table of these problematic behaviors, from the investigation “#PrendsMaPlainte” by Nous Toutes:

From the top line to the bottom, you can find the percentages of situations when the facts were banalized, when the complaint was refused, when the victim was blamed, when the policeman made sexist or discriminatory remarks/jokes and when the policeman took the perpetrator’s side. And from the left to the right column, you can read the total percentage for each behavior, the percentage in cases of domestic violence and the percentage in cases when the survivor was under 18 years old.

You probably better understand the issue now but it does not end here. Even if you, as a survivor of violence, manage to get your complaint taken, your struggle continues at the court. Spoiler: the entire system is flawed and influenced by the patriarchal structure of our whole society!

II/ Dysfunctions at the trial’s level

For this part, I will focus on the data given by the official document “Infostat Justice n°160”, published by the French Ministry of Justice in 2018 and which focuses on sexual violence. You can also access this document online. 

First, many of the complaints do not lead to a trial, they are dismissed. According to the official statistics of the Ministry of Justice, only 27% of all sexual violence cases are taken to the court, 30,8% of the rapes, 25,3% of the sexual assaults and only 17,4% of the sexual harassment cases. Many women killed by their partner or ex-partner had complained before their murder. In 2018, the Ministry of Justice analyzed these murders and discovered that in the cases where the victim had complained, 80% of these complaints had been dismissed. 

But why are these cases not taken to the court? Most of the time, the problem is the lack of proof. 72% of complaints for rape are dropped because of this reason. Often, judges/prosecutors recognize that there had been a sexual relationship but they consider that the lack of consent cannot be proven. Here is an official table from the Ministry of Justice with the different reasons that can lead to the drop of charges:

In the left column, there are the different reasons for the drop of charges. We will only look at three of these reasons: lack of proof (on the 3rd line, first line without bold letters), the absence of violation of the law (next line) and reminder of the law (next line). We can see that most of the time (65% of cases), the problem is the lack of proof but the court knows that there has been a violation. In only 11.8% of cases, the court stated that there is no violation. And in 5,5% of cases, the perpetrator of violence only had to listen to a reminder of the law… It was the case in 2% of the rape cases and 7,4% of the sexual assault cases… Compared to other types of cases, sexual violence cases are more often dropped (43% of sexual violence cases are dismissed compared to 62% of cases in total, no matter the type of violation). 

Another difficulty encountered by survivors of violence is the duration of the investigation, 10 years on average! The preliminary inquiry (by the police) lasts 8 months on average, then the legal investigation (by the judicial system) lasts 29 months on average and finally, the trial lasts between 58 months and 137 months! This dysfunction is often used as an argument to push women to ask to send their case to the “tribunal correctionnel”. In France, there are three different types of courts. Each of them is dedicated to a type of violation of the law. The “Tribunal correctionnel” is supposed to be dedicated to misdemeanors (sexual assaults for example) whereas the “Cour d’Assises” is supposed to judge crimes (rapes for example). Finally, the “Tribunal de police” is supposed to deal with minor offenses. 

However, only 38,4% of rape cases are sent to the “Cour d’Assises”, where they should be sent. 15,4% of them are sent to the “tribunaux correctionnels” so they are judged as sexual assaults, as misdemeanors, and perpetrators will be condemned to less important sentences. 

Why do survivors of violence accept sending their cases to the wrong tribunals? Often, this option is described as the only option available to survivors to have a trial and to see their aggressor be condemned. 

I hope that you now have a better idea of the flaws of the French judicial system. The key elements to remember are that professionals are not trained enough on sexual and gender-based violence questions and through their behaviors, they reinforce patriarchal and violent mechanisms. Finally, there is also a lack of financial resources. Investigations would happen faster if there were more judges for example. Despite all this bad news, please do not lose faith in the future, many associations are currently fighting and raising awareness to make things change. Now that you know more about the situation, play your role and support these associations by donating some of your time or money, by sharing information around you, by protesting and signing petitions to put more pressure on the government.

By Carlotta Facchini

Author: Le Dragon Déchaîné

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