Taha Bouhafs, Damien Abad, but also Jérôme Peyrat, Nicolas Hulot, Gérald Darmanin and a few others. Business follows, accumulates. They relate to accusations of rape, sexual assault or harassment. Some are based on a single testimony, others on the accusations of many women. There are ongoing investigations, others closed. Complaints have been dismissed for prescription, others for uncharacterized offences, there have been dismissals, more rarely convictions. All these cases have in common to be the symbol of the times, those of MeToo which shakes up the political field. Regardless of the details, the most virulent activists clash around them with tribunes, hashtags, peremptory declarations. On the one hand, in the name of a “we believe you” granted to women, we intimate to so and so to resign from a post of minister or to give up a candidacy for the legislative elections. On the other, we cry out for arbitrariness and we claim to detect everywhere the proofs of a feminist terror against the law, men and social peace.
Between these two extremes, an immense majority no longer knows where to place the cursor between respect for the presumption of innocence and the duty to set an example, between law and morality. Questioned a few days ago on BFMTV about Damien Abad (implicated for rape, but the complaints were closed and the prosecution indicated that it was not reopening an investigation “as is”), Jean-Luc Mélenchon, who has been known to be more virulent in political battles, testified to his embarrassment: “I think that as it stands, it would be better to take into account the fact that this triggers such emotion. (…) I cannot tell you more because I do not want to overwhelm someone if he is innocent, nor spare him if he is guilty. The position of the current majority, between “conversation of man to man” and “the voters will decide”, does not convince more. As for public opinion, it is divided into two almost equal parts between immediate resignation after the accusations and waiting for a court decision, according to an Elabe poll for BFMTV and L’Express, carried out at the end of May after the appointment of Damien Abad. .
If the confusion is so great, it is in particular because, on all sides, much more is expected of justice than it can give. For the victims, since the hatching of MeToo, all is not perfect, but listening has improved. From now on, the parquet floors open an investigation as soon as a woman files a complaint even if the facts are prescribed with the idea of collecting more recent testimonies. And the investigation is automatic when a minor is concerned. But paradoxically, in these cases, the frustration is often great. The numbers show it. In 2019, the police received 42,000 complaints of sexual violence outside the family circle, according to INSEE, but 61% of the facts were not prosecuted (for an uncharacterized offense) and more than 80% of the complaints did not result in a conviction. Because the facts are old and the investigations frequently end in dismissals, which gives the complainants the feeling of not being listened to, nor recognized, while the defendant can therefore say that they have been “cleared” by the courts. And that disappointment adds to past frustrations when the courts and the police failed to rise to the challenge. For a long time, it was difficult to file a complaint for acts of rape and sexual assault and, this stage passed, the procedures were unsuccessful.
The slogan “we believe you” – and no longer “we listen to you” – thrives vigorously on these disappointments generated by the justice of which they expect a lot. “On the side of the plaintiffs and their supporters, we undermine the credibility of the judicial sphere because we consider that justice works poorly, that there are too many classifications without follow-up, that justice is incapable of condemning. So, we ban ourselves , forgetting in passing that pain is not proof of an offense”, notes a lawyer who prefers to remain anonymous, tired of the anathemas poured out on those who dare to speak out on the subject.
“It is not because the complaint is closed for absence of infringement that the facts did not exist. But to characterize an infringement, it is necessary evidence. Otherwise, we are in another register. We must not wait for a judicial response where it cannot be”, notes Delphine Meillet, lawyer at the Paris bar.
If some plaintiffs want to put justice where it has no place, those who brandish the presumption of innocence to defend the retention of so and so in office also maintain confusion. Because if this fundamental principle of law is obviously a constituent element of our life in society, legally, it is very framed and limited to extremely specific cases. Thus, a person can only lodge a complaint for non-respect of his presumption of innocence if the remarks presenting him as guilty have been made publicly and after a final court decision. Clearly, when a complaint is dismissed, when it comes to simple rumors or accusations made in the press prior to legal proceedings – and this is the case for most recent cases – , the presumption of innocence does not apply. Ditto in the case of the prescription which does not prevent a woman from speaking up to tell her story. “We saw it with the Sauvé commission on pedocrime in the Church, it is possible to speak years after the prescription and that does not bother anyone”, underlines Valence Borgia, lawyer and co-founder of the Women’s Foundation.
To put an end to slanderous allegations, the defendant can of course file a complaint for defamation against his or her accusers. Nevertheless, the Eric Brion and Pierre Joxe cases showed that they were not sure of winning their case. In May, the two men’s defamation suits were definitively dismissed, the Court of Cassation having found that their accusers were, despite factual errors, in good faith on the grounds that they had “contributed to a debate of general interest ” in the context of the liberation of women’s speech. If it is difficult to measure today the scope of these unprecedented decisions in the balance between the principles of “freedom of expression” and respect for the presumption of innocence, they mark a turning point. And revive the concern of those who fear a media lynching in the name of morality.
For many, there is an urgent need to find a solution to get out of this frontal opposition which does not satisfy anyone except a few militant circles in both parties. Some propose to imagine a kind of “code of ethics” which would make it possible to manage the time between the questioning and the judicial decision, in the manner of what is done today in business or in the public service. Indeed, an employer has the obligation, as soon as he is informed directly or indirectly, of acts of harassment or sexual assault by one of his employees to conduct an investigation. And to take sanctions if he deems it necessary, since he is bound by an obligation to protect other employees. All this without any direct link to any legal proceedings. Indeed, if the facts are sufficiently substantiated and if the investigation has been seriously carried out, an industrial tribunal may confirm a sanction (including dismissal) even if the judge has decided to dismiss the case or a ranking without continuation. “There is only one condition: the correctional decision must not have noted the material inaccuracy of the alleged facts, notes Marilyn Baldeck, the general delegate of the European Association against violence against women at work (AVFT Otherwise, the employer’s power of discipline applies.”
Why, therefore, not take inspiration from this example to find a method that would govern the political world, while giving justice real means of dealing with what falls within the strict judicial field? Some warn against “parallel justice”. But in the past, and in matters other than sexual matters, there have already been sanctions applied outside any legal framework and without the slightest safeguard: we remember the resignation of a Thomas Thévenoud in delicacy with the tax authorities, an Aquilino Morelle for conflict of interest or a François de Rugy for expenses deemed too high. None of the three was at that time under the influence of legal proceedings and no one (or almost) was shocked to see them amicably pushed towards the exit. “In 2014, we created the High Authority for the Transparency of Public Life, which aims to remove from mandates and appointments those who are in difficulty with the tax authorities. We have almost reached the same view with regard to the behavior of violence, but we do not have the same instrument of regulation and transparency”, notes the socialist senator Laurence Rossignol.
Creating such an institution would require deciding a certain number of delicate questions: what justifies dismissing someone? At what stage? Would you need a testimonial? Several ? How to assess their credibility? “We could at the time of an appointment, when there is no complaint, do checks and a bundle of clues lead to a suspension. It would be different from a simple precautionary principle”, suggests Marilyn Baldeck, from the AVFT. But it would then require an independent and indisputable body, disconnected from the “cells” created by the parties. “I do not at all agree with Taha Bouhafs and his ideas, but it is not up to a party cell to ask him to withdraw. Otherwise, we are in a society of arbitrariness”, puts in keeps Tristane Banon, author of La Paix des sexes (The Observatory). An independent body would also have the advantage of not being suspected of yielding to political manipulation.
An argument widely used in recent weeks by those in question: “But don’t you see that if it happens now, it’s not by chance?”, we hear. A certainty, it is urgent to get out of the hubbub and find some shared rules. To, finally, (re)make society.