The explosion caused by the Olivier Duhamel affair, accused in a book by his daughter-in-law Camille Kouchner of abusing her twin brother, then a teenager, and by the #Metooinceste movement revives the debate on ways to better repress incest and sex crimes against minors.
On this sensitive and legally complex subject, several bills are in progress or in the drafting of the National Assembly and the Senate - one of them, carried by the centrist Senator Annick Billon, was adopted there at first reading this Thursday January 21.
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The government does not intend to "legislate under the influence of emotion", Prime Minister Jean Castex warned on Monday.
We must not "give in to haste", added the Minister of Justice Eric Dupond-Moretti on Thursday before the senators, announcing that a "consultation work" of associations, led by the Secretary of State in charge of 'Childhood and Families Adrien Taquet, would begin "from next week".
Still, a new reform of the criminal law on sexual violence against minors seems inevitable in the short term, without waiting for the outcome of the future work of the commission on incest.
"A very strong and very clear social requirement"
"What the current debate shows is that there is now a very strong and very clear social requirement for our legal, investigation and criminal procedure system to better protect children", notes Edouard Durand, judge of the children and co-chairman of the violence commission of the High Council for equality between women and men (HCE).
Two and a half years after “the Schiappa law” reinforcing the fight against gender-based and sexual violence, “progress remains to be made”, underlines the magistrate.
“These books (“ Le Consentement ”by Vanessa Springora published by Grasset in 2020,“ La Familia grande ”by Camille Kouchner at the Seuil), these Matzneff and Duhamel cases, show us the real, that is to say the asymmetry and violence, the seizure of power of an adult, through the sexual act, over the body of a child.
"
Among the elements of the debate, two questions, which sometimes get mixed up, arise in particular: that of prescription and that of the establishment of an age threshold below which the non-consent of the victim to sexual relations would be. presumed.
Longer deadlines or imprescriptible crimes?
The “Schiappa law” of August 3, 2018 increased the limitation periods for sexual crimes against minors from twenty to thirty years after the victim has reached the age of majority - which means that a person who has been raped during his or her minority can file a complaint until at his 48 years.
The taboo of incest, the omerta that surrounds sexual violence, the time necessary for these victims to manage to speak - between ten and nineteen years for a third of them, according to a recent study by the Institute national demographic studies (INED) - raise the issue of impunity for aggressors.
Should the limitation periods be extended even further, or even, as associations (Traumatic memory, Facing incest, etc.) claim, make these crimes imprescriptible?
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For the time being, in France, imprescriptibility only applies to crimes against humanity.
Preserving this singularity would not, however, be the reason why most legal professionals are opposed to its application to sexual crimes against minors.
"Their gaze is that of the effectiveness of the rights that may result from it," decrypts the lawyer Florence Neple, president of the equality commission of the National Council of Bars.
In these cases, where it is rare for the author to acknowledge, the concern is always that of proof.
However, the more time passes, the more the evidence is withering away.
For a victim who had difficulty speaking, seeing his file lead to a possibly violent dismissal.
"
President of Traumatic Memory and Victimology, psychiatrist Muriel Salmona rejects this argument.
“There is no problem of proof, there is always a bundle of clues.
Time gives, on the contrary, more means of accessing the truth, she believes.
Because more people are talking and because the use of current means of communication leaves traces.
"Favorable to imprescriptibility, she also demands" the lifting of the limitation period for serial crimes and for the obstacle of traumatic amnesia ".
Muriel Salmona considers the current mobilization "historic" and recalls that a recent resolution of the European Parliament urges States to lift all restrictions on this violence against children.
"We allowed impunity to take place," she denounces.
#Metooinceste leaves from France.
To be up to this movement, immediate reforms are needed!
"
13 or 15 years old: age threshold and no consent
It is on this question of an age threshold below which any sexual relationship between an adult and a minor would be considered as not consented that the bill from Senator Annick Billon focused.
In 2018, an “irrefutable presumption of non-consent” allowing any act of penetration of an adult on a minor of 15 to be considered as rape had been considered.
But the Council of State had raised a risk of unconstitutionality, the measure being able to be considered contrary to the principles of the presumption of innocence and the rights of the defense.
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The senator's proposal intends to circumvent these pitfalls: “The idea is to create an independent offense and a prohibition: any sexual relationship with a 13-year-old minor is considered a crime.
Below 13 years, we will not question the criteria of rape (
Editor's note: violence, constraint, threat or surprise)
, and especially not the consent of the child.
"Considered insufficient by associations, this threshold of 13 years is, she recalls," that of the criminal responsibility of minors "and it represents" an almost indisputable limit of childhood.
"
For the magistrate Edouard Durand, the creation of an autonomous offense, on the model of the offense of sexual assault, has the disadvantage "of evacuating the forced and violent character" of the act.
“We just say:
you don't have the right
.
But to evacuate consent is to admit that it can exist.
"He recalls that the High Council for Equality between Women and Men (HCE) has recommended since 2016" to establish in our criminal legislation a presumption of constraint, set at 13 years, for any adult committing a sexual act on a child.
"
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He insists: “The law must speak of the real.
The child emits a need for emotional security.
The passage to the sexual act of the adult is a perversion.
The adult takes power over his body, his psyche, his emotions.
The only way to put that into law is to presume duress, which is not a presumption of guilt.
The act must be demonstrated in all cases.
"