Dominique Coujard is a retired criminal court judge, and has presided over around one hundred trials involving crimes of incest. He underlines the tortuous situation in which victims find themselves. “I’ve already seen convictions where a girl victim of incest shouts across to her father, ‘I love you dad, I’ll be waiting for you for when you leave prison’,” he told Mediapart.
One of the greatest difficulties in the cases, he underlined, was that victims “speak against someone they have loved, who they sometimes still love […] This conflict of loyalty constitutes the first obstacle in freeing up speech.”
Cécile Mamelin, vice-president of the largest French magistrates’ union, the Union syndicale des magistrats (USM), has spent a large part of her career as a judge dedicated to legal affairs concerning children, and later as a criminal court associate judge. “These stories remain very painful,” she said. “The victims struggle against the process of denouncing someone for whom they had, or continue to have, affection. These cases of sexual abuse in the family environment always reveal themselves to be very delicate. An enormous suffering is put before us, to us as magistrates like [also] the juries.”
Another magistrate with experience of cases of incest, and who asked for his name to be withheld, underlined that crimes of incestuous abuse of children are investigated and brought to trial on the same legal terms of sex crimes. “We don’t judge cases of incest, which do not exit as such in law, but [rather] sexual assault and rape,” he said. “The question we ask ourselves is to know whether there was rape or not. The most important thing is to explain to jury members what elements constitutes it, because rape in the collective imagination is not necessarily [the same as] its legal definition.”
The magistrates spoke highly of the seriousness with which jury members approach the problem. “I am always agreeably surprised by the quality of the juries, said Cécile Mamelin. “They have at heart to deliver justice in full knowledge of the facts.” For Dominique Coujard, “There’s no worry to be had during the deliberation, everyone understands, everyone is shaken up in the same way”.
Paul (not his real name), who has sat on a criminal court jury in a case of incest, agreed. “It is an incredible expression of democracy, all the more so because we have people’s lives in our hands,” he said. “The members of the jury care about what they must do.” His one regret was what he considered to be the poor quality of the psychiatric expert’s report.
Paul said he took it upon himself to explain to his jury colleagues the consequences for a minor who suffered sexual assault, which he has particular knowledge of due to his professional activities: “People sometimes have little awareness, and when a psychiatrist says ‘apparent anxiety trouble’, concretely what does that mean?”
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But regarding cases of incest, the difficulties begin before the trial stage. “A case comes before a jury trial because there is sufficient evidence in the file, [and] what has happened proves to be fairly unquestionable,” a former presiding judge, whose name is withheld, told Mediapart. “At the public prosecution services, a lot of procedures are dropped because after months of investigations nothing is found, other than the [alleged victim’s] initial statement – which doesn’t mean that the person has lied.”
Last December, following a slew of high-profile cases of child sex abuse and a subsequent outpouring of testimonies by people who said they had been victim of incest, notably on social media under the hashtag #MeTooInceste, the French government launched an independent “commission on incest and sexual violence towards minors”, under the auspices of the junior ministry for children and the family. It is to render its conclusions, notably on legal reforms, in 2022 – a timetable that some political figures and child protection associations have slammed as being far too long.
Former socialist justice minister Élisabeth Guigou was initially appointed as its president, only to be forced to stand down last month because of her closeness to Olivier Duhamel, a high-flying French academic who was accused in a book published in January by his stepdaughter, Camille Kouchner, of sexually abusing her twin brother, beginning when the boy was aged 14. The alleged events, now the subject of a formal investigation, were reportedly an open secret among a clique of the Paris intellectual elite, and continues to topple others among them.
The commission is now led by two co-presidents, one of whom is magistrate Édouard Durant, a former judge for children’s affairs. “Seventy percent of complaints for sexual assault of a minor are dropped with no action taken,” he told French daily Le Monde in an interview published last week. “The divide between the events and the [numbers of] prosecutions generates a system of impunity for the perpetrators.” He says there has been a public awakening to the problems of the sexual abuse of children. “I sense a strong expectation of society, a political issue at stake,” he said. “The attitude we have about our collective responsibility to protect children is in the process of changing.”
In a survey last November by opinion pollster agency Ipsos and commissioned by French association Face à l’inceste (‘In face of incest’), one in ten of those questioned said they had fallen victim to incest, the vast majority of who were women. Extrapolated to the entire French population, that would represent 6.7 million people.
According to figures from the French interior ministry, in 2019 in mainland France, a total of 28, 972 cases of sexual violence against minors were reported to the police and gendarmerie. Among them, 80.1% concerned underage girls. Almost a third of the total number of cases, 30.4%, occurred within a family environment, and out of those, girls represented 78.3% of the victims.
In a 2018 parliamentary report by Senator Marie Mercier, following the work of a cross-party commission on how to improve the protection of minors against sexual violence, it was noted that in 2016, a total of 396 people were convicted of raping a minor aged under 15, and 2,222 others were convicted of sexually assaulting a minor.
While the figures cited by Mercier and those provided by the interior ministry for 2019 are three years apart, the gap between reported cases and convictions is significant.
“If one wants these cases of incest to reach court, it’s necessary to be able to carry out investigations,” said a magistrate from the French public prosecution services, speaking on condition her name was withheld. “But [the justice system] remains notoriously overloaded in France, even more so regarding minors, [for who] the situation is particularly catastrophic.”
She underlined that cases of sexual assault against minors require complex and lengthy investigations, with numerous interviews and also medical reports. “We have a tendency to concentrate our limited means on the more obvious cases, the simplest, with material evidence, physical traces of rape. Those cases go to court more easily, to the detriment of less substantiated cases with little material evidence, [or which concern] events from the past.” She also argued that magistrates should be better trained in the field of child psychiatry.
Another magistrate, Anne-Laure Maduraud, underlined practical difficulties: “It’s very complicated. Children reveal things, the events are sometimes denied [and] the presumption of innocence must be respected. The investigation sometimes lasts one, two or three years, during which the children must be placed in care. If there is an acquittal afterwards, what do we do?
According to Senator Marie Mercier’s 2018 parliamentary report, citing then recent data, almost half of convictions for the rape of a minor aged under 15 involved underage perpetrators. “Sometimes the [underage] perpetrator is placed in care,” said Maduraud. “The parents are not necessarily rejective. But what are we creating? How do we go about things in educational terms?”
She recalled the case of a father who was a single parent with two daughters, and who himself had asked for them to be placed in care to protect them from himself. He explained that as the eldest daughter grew older, he had begun to be attracted to her as a woman. “They were placed in care,” said the magistrate. “They remain very fond of their father. But when we wanted to set up psychiatric counselling for him, he retreated. The issue proves so difficult to broach.”
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- The original French version of this report can be found here.