After the Mazan trial, “a new way of judging rape”?

Qfour months of an extraordinary audience, passionately followed all over the world. 51 accused, all of whom the Vaucluse criminal court found guilty, and sentenced to sentences ranging from 3 to 20 years in prison. A civil party, above all, Gisèle Pelicot, who chose to open the doors of the hearing to the public and took on the dimension of an icon…

Magistrate Denis Dalas, associate professor at the National School of Magistracy, president of the French Association for the History of Justice and author of Denial of rape (Michalon, 2023), shoots for The Point the lessons of the trial.

The Point: What do you think of the verdict in the Mazan rape trial?

Denis Dalas : The maximum sentence imposed on Dominique Pelicot is not surprising; are more two-thirds security, without modification of sentence, with which it was accompanied. The bill is heavy. The court sends a message by joining the prosecution in its requisitions: it saw in Dominique Pelicot a character rooted in sexual perversion (according to psychiatric experts) and was not fooled by the pledges he sometimes tried to give: his recognition of the facts, his apologies even in his final statements. We have here, through the court’s decision, a truly retributive response from society: it punishes a man who, like many perverts, plays with the law and does not take credit for the faults he decides to acknowledge.

In front of him, there are these 50 accused, including one on the run…

Overall, the verdict is intelligible because there is a sort of hierarchy of sentences. Those who most often frequented Dominique Pelicot, who came several times to Mazan, received the heaviest sentences, with then a decrescendo depending on the acts committed, the criminal record of each person, the recognition of the facts… It remains to be seen learn the court’s motivations: many lawyers, I suppose, wait for them before possibly deciding to appeal.

An appeal trial would this time be held before an assize court, with jurors.

Indeed, and this would considerably change the type of debates… without it being possible to predict whether this would work in favor of an aggravation or a reduction of sentences. A jury can be more responsive to public opinion and be more severe, but the passage of time, the possible evolution of the defense system of the accused can lead to a reduction in sentences.

Those which were handed down in Mazan are also significantly less severe than what the prosecution had requested.

Yes, and it’s not surprising. The prosecution demands in the name of society, it has a posture at the hearing very different from that of the court, which judges men, acts, circumstances, profiles, and finely individualizes its decisions. The position of the prosecution here is explained by a more firm penal policy with regard to sexual violence and by the importance of the case on a national and international scale. It was a globally recognized and followed audience, some 350 journalists were present on the day of the verdict. This was a challenge for the justice system, which met it with a professionalism that must be commended.

Were you surprised by the iconic status that Gisèle Pelicot has acquired?

The stature it has taken on is one of the big differences with the Aix-en-Provence trial: in 1978, it was essentially Gisèle Halimi who spoke for the victims. In Avignon, we dealt with a civil party who was herself singularly present. By breaking the closed door, Gisèle Pelicot responded to a collective expectation, which had existed since the emergence of #MeToo. What she suffered happened in secret, in invisibility, in the unconsciousness of a sedated sleep: by breaking this silence with a call for publicity, Gisèle Pelicot projected into the public space a hitherto invisible scene. This is an extremely strong approach, obviously, and it would be interesting to know the initial motivations. Perhaps she did not want to be alone in suffering the shock of this audience and these deadly images, perhaps she wanted to share it, and to transform it into a political message addressed to all these raped women whose she feels united.

That she became an icon was not entirely predictable, in my opinion, but it seems to me that she welcomed it as a form of restorative justice. The hearing was certainly difficult, but the entire company, and the public of Avignon, in some way gave him back his lost honor. The praise was even much louder than the expressions of punitive emotion in the public. This is one of the unexpected effects of a criminal trial when an entire society takes charge of it. It is exceptional to see an institution as professionalized as a criminal court transfigured by actors from civil society.

How do you interpret the international interest that the trial has generated?

I link it to the globalization of #MeToo: the public who was interested in the trial saw it as the materialization of a form of rape culture. The hearing was, at the same time, an opportunity to go into detail about the profiles of the accused. It is the characteristic of trials to introduce complexity to get to the sources of violence, and to screen out the convenient generalizations that militant movements can project, by demanding for example “Twenty years for all”.

What do you remember about the way the accused were defended?

This is an essential point, in my opinion, and one of the main lessons of the Avignon trial. I followed a lot of terrorism trials. Faced with an attack victim, the defense does not say a word: respect is absolute. In rape trials, we do not hesitate to implicate her, to point out her supposed participation in the facts – even when, as is the case in Mazan’s case, she was completely unconscious. It is not a question of undermining freedom of expression nor of criticizing the approximately thirty acquittals pleaded. But it is necessary today to carry out ethical reflection to provide ethical guidelines for the defense in matters of sexual violence. This is one of the reasons why I speak more readily of a new way of judging rape than of a new definition of rape.

To Discover

Kangaroo of the day

Answer

What do you mean ?

In my opinion, it is a matter of judging rape by introducing the notion of consent in the sense of its ignorance on the part of the accused. From this point of view, this trial can serve as a standard measure. During the hearing, the president did not recite the Penal Code. He never uttered the words “duress” and “surprise”. Who would have understood their meaning? He chose to ask each of the accused if they had obtained consent from Gisèle Pelicot, at one time or another. This approach was decisive. In the event of legislative reform, it may be feared that the introduction of consent into the definition of rape would shift the burden of proof onto the victim. The danger is real but the Mazan trial succeeded in introducing this dimension by referring exclusively to the behavior of the author and can, in this sense, serve as a reference.