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A Legal Vacuum in French Law on Sexual Harassment

April 20, 2018

In this piece the advocate Pierre Mury, a member of the Paris bar, reports on inadequacies in French law when dealing with cases of sexual harassment. He describes one specific case involving a prominent politician, and raises concerns about the propriety of the legal principles now determined in this matter, given the acknowledged proximity to the accused of some who made these decisions.
2,000 prosecutions for sexual harassment were dropped as a result of the legal principles established….

Pierre Mury writes:

In 2012, as an attorney, I represented the victim of a sexual harassment crime which was committed by a French politician, Mr. Gérard Ducray. That case attracted significant media attention when Mr. Ducray referred it to the Constitutional Council (the highest constitutional court in France), requesting the repeal of the 2002 law on sexual harassment. He maintained that the law did not clearly define sexual harassment and thus violated the Constitution.

In a decision of 4 May 2012, the members of the Constitutional Council concurred with this challenge, and the law suddenly disappeared.

Because of the immediacy of the decision, all sexual harassment lawsuits against Mr. Ducray were withdrawn, as well as 2,000 prosecutions. The effects of that decision went further: from then on, it was no longer possible in France to prosecute for sexual harassment before a criminal court, if the events occurred between 17 January 2002 and 8 August 2012.

This represents a legal vacuum for a decade in French law.

Just a few hours after the 2012 decision, the press published information about the careers of the person who requested the repeal of the law and of some members of the Constitutional Council. As it turned out, Mr. Jacques Barrot used to be part of the same government as the applicant, Mr. Ducray, and during this period, Mr. Hubert Haenel was a counsellor to the French president.

Was it normal that those members of the Constitutional Council did not feel the need to  withdraw from hearing the appeal ? Was it normal that those members did not respect the appearance of impartiality?

Was it normal that these members of the Constitutional Council did not comply with the most basic rules of a fair trial ?

Many French professors of law (Ms Stéphanie Hennette-Vauchez, Ms Roseline Letteron, Ms Diane Roman, Ms Claire Saas, Mr Serge Slama) were outraged at this decision.

Pierre Mury
Barrister at the Paris bar / Attorney at law (Paris bar)
5 rue de Stockholm
75008 Paris
Tel: +33 (0)1 40 17 03 77
Mobile: +33 (0)6 61 56 70 27

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This NoFGM website is owned and edited by Hilary Burrage, a consultant on female genital mutilation (FGM).  Hilary’s introduction and general information about FGM can be found here, or for a more detailed, referenced discussion of FGM, you may like also to read her post Female Genital Mutilation: An Introduction To The Issues, And Suggested Reading and see her two books on this subject:

Eradicating Female Genital Mutilation: A UK Perspective (Hilary Burrage, Ashgate / Routledge 2015).   Contents and reviews  here.
FEMALE MUTILATION: The truth behind the horrifying global practice of female genital mutilation  (Hilary Burrage, New Holland Publishers 2016).   Contents and reviews  here.

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