A Licence to Hunt: Sexual Harassment Law Repealed in France
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Yes, you did read that correctly: the offence of sexual harassment stopped existing in France on Friday 4th May 2012. In other words, France is now a haven for workplace sex pests.
Before its untimely demise, the concept of sexual harrassment had already had a difficult life. In the UK, it has been recognised by British law as a form of discrimination since only 1986; and its legal definition needed to be strengthened in 2005 « to cover any act that leads to intimidation or degradation » in the workplace.
In France, it was officially recognised as an offence even later (in 1992) and defined as follows:
« Le fait de harceler autrui en usant d’ordres, de menaces ou de contraintes, dans le but d’obtenir des faveurs de nature sexuelle, par une personne abusant de l’autorité que lui confèrent ses fonctions. »
« The act of harassing [nice tautology] someone by using orders, threats or coercion, in order to obtain favours of a sexual kind, by a person making abusive use of the authority conferred on them by their functions. »
This definition was then modified several times, so that in 2002 it was left looking like this (the potential penalty being one year of prison and a 15 000€ fine):
“Le fait de harceler autrui pour obtenir des faveurs de nature sexuelle.”
“The act of harassing someone in order to obtain favours of a sexual kind.”
No mention of “abusive use of authority” nor “orders, threats or coercion” here. Instead a text so short as to be imprecise, open to interpretation and thus, fatally unconstitutional.
Enter, stage right, the “Conseil Constitutionnel” (Constitutional Counsel), the body charged with making sure that every French law complies with the Constitution of the Fifth Republic. We’ll be seeing more of them later.
Enter, stage left, many groups representing the victims of sexual harassment, all well aware of the problematic vagueness of the law, arguing that it led to a lot of cases either being dropped, or, when the previous charges were sexual assault or rape, being requalified as sexual harassment. Further, after 2002, very few cases actually finished with a conviction (54 in 2009) and it was almost impossible to condemn sexual harassment when it was expressed verbally, non-verbally or physically. Given all this, it is not surprising that the Association Européenne contre les Violences faites aux Femmes au Travail (The European Association Against the Abuse of Women at Work) had been asking for a modification of the law for years.
It is not, however, at the request of these groups that the law was repealed, but rather that of one Gérard Ducray. The man is an elected official in the Rhône region, has had a long career in politics, and was himself condemned in 2011 for sexually harassing three women. His lawyer explained that what he did was only “des avances un peu lourdes” (some heavy-handed flirting). She argued that the law permitted all kinds of abuses and interpretations, and the Conseil Constitutionnel agreed with her. But instead of waiting for a new law to be written and voted on, as the AVFT asked, so that there be no non liquet (a situation where there is no applicable law), the Conseil decided to repeal it immediately. As a consequence, all ongoing sexual harassment cases have been cancelled. There is little hope that the charges can be requalified (some cases might be considered as involving sexual assault, for example), and no way to accuse someone of sexual harassment, as it is no longer a punishable crime.
In response to the decision of the Conseil, organisations representing victims, along with several feminist associations, published a joint communiqué in which they declared themselves “revolted” by the “message of impunity” thus sent to harassers. The new French President François Hollande (then only a candidate) also issued a statement to promise that a new law will be written and put to the vote as quickly as possible. It might well, however, be months before this ‘license to hunt’ is put to an end, as a new Parliament will be elected in June.
An online petition against the repealing of the law gathered almost 2500 signatures in four days. There was a demonstration on Saturday 5th May, and an official complaint was lodged against the Conseil Constitutionnel for putting the victims of harassment in danger. The scandal is all the stronger since Mr Ducray knew three members of the Conseil personally, one of whom actually took part in the decision-making. The Conseil Constitutionnel is composed of eleven members: nine men and two women. Nine of them, two women and seven men, signed the official decision.
So if a colleague gets all fresh with you in the stationary cupboard; if your sleazy boss continually pats your arse as you walk past, or gets so close in the corridor that you can smell yesterday's lunch on his breath...well, you can forget it, because there's no help for you here.
Oh yes, and I almost forgot the best part: members of the Conseil are called “The Wise”.