In recent times, a disturbing discourse has been heard by lawyers. While populist speeches have always challenged some of our fundamental principles in the name of security and judicial efficiency (remember that France is the country of human rights, it is also the one of the insult “rights-of-man-ism”), the novelty is that this discourse is spreading in political, legal, and intellectual circles without reactions seeming to match the stakes. Currently, the realm of sexual violence is the focus of the normalization of this type of discourse. Everyone will agree that the liberation of victims’ voices is beneficial and has allowed the justice system to address its delays and institutional resistances. However, this liberation is accompanied by a media and digital onslaught that presents a worrying rhetoric about the judicial treatment of these cases. As a result, there is a complete prohibition on defense, as even the most fundamental mechanisms of criminal procedure are designated as tools of the adversary in the service of impunity.
This has led to a questioning of essential principles, particularly the presumption of innocence and its corollary, the burden of proof, which are no longer taboo to contest. According to a December 2023 OpinionWay survey, 69% of French people believe that our elites should resign immediately upon being accused of sexual violence, before any conviction is pronounced, thus denying them the right to the presumption of innocence. In the same vein, it is not uncommon to hear politicians argue that the application of our legal rules should be set aside in the name of notions as ridiculous as “common sense”. For example, former Secretary of State Juliette Méadel argued in a column in Le Monde that “victims should be able to benefit from an adapted burden of proof, deviating from common law. The sense of justice and common sense command it.”
The Independent Commission on Incest and Sexual Violence against Children (Ciivise) also stated in its report released in November 2023 that these principles are “a good excuse”, in other words, excuses used to avoid protecting children because it is always to justify the refusal to protect them that they are invoked. This dangerous trend has been present since the 2000s.
The societal discourse around sexual violence and the judicial treatment of such cases have become increasingly polarized, with a growing skepticism towards legal principles such as the presumption of innocence and the burden of proof. This has led to a lack of adequate defense mechanisms and a dismissal of established legal procedures, often in the name of emotional or moral considerations. In this environment, victims’ voices are prioritized, but at the cost of due process and fairness for all parties involved.
It is important for society to find a balance between giving victims a platform to speak out and seek justice, while also upholding the fundamental principles of legality and fairness in the judicial process. The growing trend of disregarding established legal procedures and principles in favor of emotional or moral arguments poses a threat to the rule of law and the protection of rights for all individuals, whether they are victims or accused individuals. It is crucial for legal professionals, policymakers, and the public to engage in constructive dialogue to address these challenges and find solutions that ensure justice is served while upholding the principles of democracy and the rule of law.
