The onslaught on the Minister of Solidarity, Damien Abad, comes as no surprise to legal experts. In recent months, the Cour de cassation has clearly become the arbiter of the big question facing our old French society, that of sexual abuse and its public denunciation. Have Elisabeth Borne and her advisors realized that respect for the presumption of innocence, the principle according to which a person should not be publicly presented as guilty until the courts have definitively convicted him or her of a criminal offence, does not in fact apply to Mr. Abad? This week’s lamentable soap opera seems to suggest otherwise.

The paradox of presumption of innocence

Since the complaint had been closed, and the denunciation was old, he was protected, we thought. On the contrary – and it’s an oddity, a trap door, say the quibblers – the law on the presumption of innocence introduced by Madame Guigou in the early 2000s, this procedural shield against public vindictiveness and the “media tribunal”, does not protect all defendants. And, paradoxically, especially those who have had their cases dismissed.

The First Civil Chamber of the highest court wrote as much on February 16, 2022, in a ruling that also indirectly concerned Mediapart: “respect for the presumption of innocence applies only to ongoing proceedings, which excludes complaints that have been dismissed. In other words, in order to benefit from the presumption of innocence, a police investigation would have to be re-started under the authority of the public prosecutor (this is not currently the case), or the Abad case would have to be referred to an examining magistrate. But then, it would probably be too late for the Minister and, above all, for a government that still doesn’t know how to take account of this new societal movement commonly known as “MeToo”.

In two landmark rulings handed down on May 11, 2022, this same Court of Cassation recently authorized plaintiffs to make accusations by name in the public arena, via the media and above all social networks, provided that what they are denouncing is in the public interest and that they appear to be acting in good faith (a more complex notion than it might seem). According to our highest magistrates, stigmatizing a man with an aggressive hashtag is an invitation to debate the issue of sexual abuse. The risks of media lynching have been deliberately ruled out, and conviction without trial no longer appears heresy if we follow these two judicial decisions.

“The legislator can perfect the law on the presumption of innocence so that it applies to all defendants”.

Of course, the legislator will be able to repair the legal void and perfect the law on the presumption of innocence so that it applies to all defendants, not just those still under investigation. In this way, the principle of infringement of the presumption of innocence, which is gaining ground in the public mind, will be better understood and contribute to the balance of judicial, media and democratic debate. A working group chaired by Ms. Guigou submitted its report to the government in October 2021 as part of the Estates General on Justice. No doubt the Minister of Justice will be studying the experts’ conclusions.

“When will we be mature enough to judge these sensitive matters in their proper light?”

One question remains: when will we be mature enough to judge these sensitive issues in the light of their true value, while respecting the rights of each of the protagonists? In the media, of course, but above all in the legal arena? Unfortunately, it’s indisputable that complaints are still not dealt with by the police and gendarmerie in the most dignified conditions. While progress is measurable, it has to be said that, all too often, women are still neglected or called liars, even though their credibility has not yet been debated. This procedural abuse is painful.

Isn’t it time to move towards a more balanced society, where alleged perpetrators enjoy respect for their presumption of innocence in the public arena, and where complainants/victims would also benefit from strict respect for their statements along the way? For the time being, the handling of complaints is not rational or systematized, and the time it takes to process them through the courts is difficult to tolerate. These frustrations fuel ad nauseam an increasingly violent public debate, far, too far from the legal arena.

Guest Writer – Sophie OBADIA

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