A percentage that questions by its weakness. "Only 3% of complaints for rape of minors give rise to the conviction of the accused," said at the microphone of Franceinfo, on September 21, the co-president of the Independent Commission on Incest and Sexual Violence against Children (Ciivise), Édouard Durand.
On the occasion of the publication of the results of two years of testimonies collected by the Ciivise, the judge insisted on the modicity of this percentage: "The presumption of innocence was never designed to generate a system of immunity of the aggressors," he commented. Where does this figure come from and how to explain it?
Disproportion between complaints and convictions
This percentage had already been quoted in a "professional training booklet" of the Ciivise, dating from November 2022. "In cases of rape, only 3% of complaints of rape of minors under 15 years of age result in a conviction," it read. This figure thus concerns minors aged 15 or under, i.e. the age that sets the threshold for the consent of minors in a sexual relationship with an adult. Below the latter, any sexual activity is automatically considered non-consensual.
To obtain this figure, Ciivise drew on the work carried out by the interministerial mission for the protection of women against violence and the fight against trafficking in human beings. More specifically, in his letter n°17, on "violence within the couple and sexual violence in 2020".
According to her, 8720 minors under the age of 15 were registered, by police stations and gendarmeries, as victims of rape in 2020. In the same year, 279 convictions for rape of minors under the age of 15 were recorded. By calculating the ratio between the two, we actually get 3%. However, this report can be misleading. Criminal investigations and trials take several years. Thus, the convictions of the year 2020 cannot correspond to the filing of complaints of the year 2020.
The ratio between these two figures does, however, shed light on the discrepancy between the large number of complaints and the very small number of convictions for the same type of case. Regarding sexual violence against minors, "less than 7% of complaints result in a conviction of the perpetrator," also specifies the Ciivise in a report of November 2022.
Contacted by Le Figaro, the Ministry of Justice also specifies that these percentages have never been calculated because they would require to identify all the complaints filed with the police throughout the country and to follow their judicialization in each prosecutor's office for several years. Thus, "what is important is to see the gap between the extent of sexual violence against children and the outcome of the judicial treatment, the judicial process," insists Édouard Durand, co-president of Civiise.
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But how to explain this disproportion? This is due, first of all, to the very large number of cases of sexual assault on minors closed without further action. "More than 73% of cases of sexual assault on minors referred to justice are closed without follow-up," detailed a Senate report, dating from the year 2018. Concretely, in almost three quarters of cases, the public prosecutor decides not to prosecute after receiving the complaint because the case is not "prosecutable".
In question, the characterization of the facts, difficult to establish. "In the vast majority of cases, the offence could not be characterized," the report explains, "prosecutors report great difficulties in establishing the facts of sexual offenses in the case of offenses generally committed without witnesses." It is therefore often the lack of evidence that poses a problem: "If the victim's statements, contradicted by those of the accused, are not corroborated by any other objective element, the prosecutor's office often decides to dismiss the case," the report says.
What matters is the rate of effective criminal response," says criminologist Alain Bauer. The criminal response rate corresponds to the ratio between "the number of cases for which the public prosecutor has implemented an alternative to prosecution, a criminal composition or has prosecuted the alleged perpetrator" and the number of prosecutable cases, says the Ministry of Justice. The latter, concerning cases of sexual assault on minors, hovers around 90%, showed the Senate report.
Evidence and consent
Once the investigation is opened, several issues specific to sexual assaults on minors appear. "First of all, there is a question that arises: can we believe the word of a child?" explains Claire de Gattelier, author of the book Sexual Violence on Minors (Artège, 2023). "Before the Outreau case, we mentioned the presumption of credibility of the child's word. After Outreau, there was a change of perspective, we realized that children could also lie, "she continues, thus insisting on the need to obtain concrete evidence.
A medical certificate must be made immediately, but this is rarely the case," she says. And for good reason, the child's speech is often released several years after the assault and it becomes very difficult to obtain evidence of the assault. " We must therefore carry out a whole psychological work, with expertise, "continues the specialist. But here too, this work can be difficult: "The confrontation is made almost impossible because it adds trouble for the victim," analyzes Claire de Gattelier. And a fortiori for a child in front of his potential aggressor. "It's often the iron pot against the earthen pot," she whispers.
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Assaults by minors
Not to mention the issue of consent, which is very complex to apprehend," says the expert. If the law of February 21, 2021 has made it possible to consider any sexual act with a minor under 15 years of age as a sexual assault or as a rape [Article 1, Editor's note], many cases still present difficulties from this point of view. In particular with regard to matters between minors. "44.5% of sexual violence against minors is committed by other minors," recalls the expert.
However, situations are often difficult to unravel. "In many cases, young people were alcoholic. The girls filed a complaint the day after the incident, claiming that they did not consent. The boy defends himself for his part by saying that she had on the contrary seduced, "says Claire de Gattelier before continuing: "Sometimes nude photos were sent the day before and it is even more complex to prove guilt." According to her, the stakes are thus much broader: "These aregenerations bottled to pornography, in which the model is non-consent, in which the woman says no," she says. "Girls, for their part, are under pressure from social networks to accept things, to send photos."
For Édouard Durand, it is therefore imperative to "take more seriously the word of the child" but also to take more into account "the mechanisms of violence, the strategy of the aggressor and his modus operandi to coerce a child". "This is an extremely massive crime," he said, recalling that nearly 160,000 minors are victims of sexual violence.
And without calling into question the fundamental principles of justice such as the presumption of innocence, the judge invites a new implementation of the latter. For example, the Ciivise has proposed the suspension of criminal proceedings for "non-representation of a child" [Editor's note: not returning the child to his or her ex-spouse in the context of shared custody], when the other parent is under investigation for incestuous sexual violence. "Howwould this provision preclude the presumption of innocence?" asked the judge, inviting ever more work on these issues in order to better protect children.