July 9, 2021 appeared in Le Monde a forum of a collective of eight women says "Without continuation". All claim to have been victims of sexual violence committed by the same man and to have lodged a complaint.
For many of them, the failure of legal proceedings can be explained by the statute of limitations of the facts, which, according to their testimonies, occurred several years ago. Just like the case implicating political scientist Olivier Duhamel, accused of rape and incest by author Camille Kouchner before the investigation was closed "because of the prescription".
This forum therefore revives the issue of statute of limitations in the context of sexual violence.
Should these facts arise from imprescribility as argued some victims associations ?
The current state of law has already taken into account to a certain extent the societal turn and the situation of victims with the lengthening of prescription periods.
Remember that when a minor is affected by a sexual offense, he will not systematically file a complaint against his attacker. Misunderstanding, shame, fear of reprisal, and even a sense of guilt can set him back. The same is true of the fear he may have towards his parents, reinforced and made more complex when the offender is precisely one of them or a member of the family.
Thus, as Amandine Sourd observed in 2020 in a article for the review AJ Penal,
“Sexual violence committed by a family member represents 37% of the total, of which 29% is committed by spouses or ex-spouses and 8% from other family members. […] Between 2012 and 2018, on average, each year, 86 people aged 000-18 declared themselves victims of sexual violence by a family member. "
The Olivier Duhamel case, who admitted to having sexually assaulted his stepson, has just been closed for prescription.
It is Camille Kouchner, twin sister of the victim, who had revealed the facts in her book "La familia grande". Brut had met her. pic.twitter.com/dJBU0naHLf
- Gross FR (@brutofficiel) June 14, 2021
What is more, the phenomenon of traumatic amnesia, which defines itself such as "an inability to recall important autobiographical information, usually traumatic or stressful" may lock up the memory of the assaults in a corner of memory from which it will not come out until many years later.
If the entry into the law of this type of phenomena debates, it emerges that the common law deadlines of 3 years for misdemeanors and 10 years for crimes, in force before the law of February 27, 2017, were largely insufficient.
This is the reason why the legislator has adapted gradually and in spurts, since no less than 10 laws have intervened in the space of 30 years, a regime of derogatory prescription for two reasons.
An exceptional prescription regime in the texts
On the one hand, the starting point of this period begins when the victim comes of age, to take into account the fact that the minor child is unable to act alone in court beforehand. The deadline therefore does not run until the age of 18.
On the other hand, this period has been extended compared to those of ordinary law, in order to take into account the specificities of these offenses and the vulnerability of their victims. It is in particular the law of March 9, 2004, Then Law of 3 August 2018 who built the current system.
Two types of derogatory periods are provided for: with regard to sexual crimes committed against minors, the period is 30 years from the age of majority; with regard to sexual offenses, it is 10 years for “simple sexual offenses committed against minors”, such as sexual assault or sexual assault on minors under 15 years old, and 20 years for “aggravated offenses committed on minors ”, such as aggravated sexual assault or aggravated sexual assault.
A person can therefore file a complaint until they are 48 years old if they have been the victim of rape during childhood, 38 years if it is an aggravated sexual offense, such as sexual assault on a minor. under the age of 15, and up to the age of 28 if she has been the victim of a non-aggravated sexual assault, such as sexual assault on a minor over the age of fifteen.
It turns out that neither the law of March 9, 2004, nor that of August 3, 2018 chose to retain the imprescriptibility of sexual offenses against minors. Could it nevertheless be considered?
Extending deadlines again or daring to imprescriptibility?
The consensus mission led by Ms. Flament and Mr. Calmettes, following accusations of sexual assault leveled against the photographer David Hamilton raises the issue of imprescriptibility with regard to sexual crimes against minors, in order, in the end, to exclude it. According to rapport rendered by this mission, this imprescriptibility is even unthinkable.
We can read there that "the imprescriptibility carries even today a strong symbolic value, reserved only for the crimes against humanity". It therefore seems inappropriate to compare sexual crimes against minors with crimes against humanity.
The text evokes a conflict of values in that sexual crimes against minors do not undermine higher social values such as humanity.
This position also goes in the direction of a decision issued by the Constitutional Council on January 22, 1999, on the occasion of which it was able to consider:
“That no rule, nor any principle of constitutional value, prohibits the imprescriptibility of the most serious crimes which affect the whole of the international community. "
Sex crimes against minors therefore seem excluded.
Give time for these crimes to be known
However, such an argument does not hold up when one seeks to understand the reasons for the imprescriptibility of crimes against humanity, in particular the desire to give time to these crimes to be known and denounced.
As the Flament-Calmettes report notes:
“The situation is not exactly the same today. […] On the one hand, crimes against humanity are revealed and known almost immediately, and on the other hand, as scientific studies and the words of the victims attest, this criterion of temporality could very well apply. sexual crimes committed against minors. "
What is more, other rights have already made the choice of non-limitation. This is the case in Switzerland, where it was retained for sexual crimes committed by an adult on a minor under 12 years old. In California, following the “Bill Cosby” scandal, imprescriptibility has been retained for all sexual assaults on minors.
At the opening of the second trial of American television legend Bill Cosby for sexual abuse, demonstrators are in court and a Femen activist takes off her coat, baring his bare chest, with several messages written like "Cosby, rapist" #AFP pic.twitter.com/YV60N4PCZo
- Agence France-Presse (@afpfr) April 9, 2018
The issue of imprescriptibility must also be put in perspective with that of proof of an offense committed many years before its revelation.
Prove the offense
The perishability of evidence and the fraying of testimonies work against imprescriptibility, although these obstacles also apply in the case of an extension of the limitation periods.
Indeed, 30 years later, it is no longer possible to carry out forensic examinations, the memories are less certain and more malleable ... The sentence set by the Supreme Court of Israel in "The dream business" must thus lead to reflection.
In the case of this judgment rendered on May 10, 2010, a young woman, awakened in the middle of the night by a dream where she was having sexual relations with her father, had been able to obtain the latter's conviction years after the facts, on the basis of a bundle of clues taking into consideration, in particular, the private diary of the victim ...
The risk that people will be convicted on scraps of evidence, or on bundles of clues, is not satisfactory from the point of view of the main principles of our criminal law: presumption of innocence, fair trial, right of defense and legal certainty, as we will see.
What application over time?
As regards the preservation of this legal certainty, the establishment of imprescriptibility would not be without posing difficulties with regard to the rules of application of the criminal law in time. Indeed, by virtue ofarticle 112-2 of the penal code, statutes of limitation are of immediate application, without it being possible to delay their application when they are unfavorable to the convicted persons.
In addition, a new reform cannot reopen the acquired limitation periods, since “a provision modifying the limitation period is applicable to all actions born before the date of the promulgation of this provision and not yet prescribed” (Crim . 3 Nov. 1994, No. 94-80.010).
It would be particularly dangerous if people who could no longer be prosecuted under the current rules were to be prosecuted overnight because of the immediate application of the new law.
Prescription, a "constitutional requirement"
Thus, he elevated the prescription to the rank of "constitutional requirement", and was able to estimate:
"It follows from the principle of the necessity of penalties, protected by article 8 of the Declaration of 1789, and from the guarantee of rights, proclaimed by article 16 of the same declaration, a principle according to which, in penal matters, it is It is up to the legislator, in order to take account of the consequences attached to the passage of time, to lay down rules relating to the prescription of public action which are not manifestly unsuitable for the nature or the gravity of the offenses. "
This decision fills a legal void since no national or international court had, until then, recognized a supra-legislative value to the prescription.
If imprescriptibility now seems to be ruled out, the legislator has nevertheless tried to take into account the requests of victims, by further and always extending the limitation periods under the guise of settling in particular the issue of traumatic amnesia.
Take into account the evolution of society
La Law of April 21, 2021 "Aimed at protecting minors from sexual crimes and offenses and from incest" has amended, for the umpteenth time, the rules concerning limitation periods in order to take into account in particular situations where the same person commits several sexual offenses against minors in the long run. of its existence.
The Code of Criminal Procedure has now been amended so that a person who would have been the victim of a sexual offense, committed by an author who has multiplied facts of the same nature, sees his time limit for instituting proceedings extended considerably.
Henceforth, the Code of Criminal Procedure provides that, when a first rape has been committed, the commission of a new rape, a new assault or sexual assault will have the power to extend the limitation period for the first offense. On the other hand, if the first offense is an assault or sexual assault, only a new assault or sexual assault will have an effect on the limitation period: a new rape cannot thus extend the limitation period for a sexual assault or sexual assault by due to a risk of disproportion. In addition, acts performed in one of the proceedings have the effect of extending the current limitation period in the other.
This complicated mechanism, to say the least, has given rise to as much misunderstanding as it has disappointed victims' associations and specialists.
Misunderstandings, first of all, about its constitutionality and its conformity with the principle of equality before the courts, since the fate of the prosecution remains conditioned on the fact that a new offense has been committed by the author. Disappointments, then, because the root of the problem, namely the obstacles which contribute to the delay in the revelation of the facts (traumatic amnesia, or even the hold of the author on his victim, two concepts which have not yet been understood from the point of view of prescription) were not processed.
Only the recognition of these phenomena as legal obstacles to the exercise of public action could make it possible to circumvent these difficulties, provided that this is indeed the intention of the legislator.
This article is republished from The Conversation under a Creative Commons license.
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