Sexual assault | “The tidal wave of #metoo” got the judges thinking

However, gaps persist in the judicialization of the accused, note lawyers

Louise Leduc
The press

Do judges penalize sexual assailants more severely since the emergence of the #metoo movement and the collective voice of victims? If the courts are still sending divergent messages, the obvious: criminal law cannot solve everything. Not all abusers can be sent to jail. Other forms of justice must be considered, according to legal experts.

For having first made the touching, then tried to put his hand in the panties of his 17-year-old intern, Michel Venne, former director of the Institut du Nouveau Monde, was sentenced in November to six months in prison for assault. sexual and has been on the sex offender registry for 20 years.

“When we look at the case law, six-month sentences for similar crimes […], there are not many ”, indicated M^e Michel Bérubé, Crown prosecutor, leaving court.

“Before #metoo, Michel Venne would undoubtedly have been acquitted,” says Rachel Chagnon, professor in the department of legal sciences at UQAM. Before this movement, there was a strong tendency in the courts to trivialize this kind of gesture. ”

The legal definition of sexual assault has hardly changed since 1983. “But the tidal wave of #metoo and the parallel justice it swept through social media inevitably hit the judges, who have became aware of victims’ dissatisfaction with the justice system, notes M^me Chagnon. This surely made them think about their practices. ”

Michel Venne was in a position of authority, his version was never believed by the judge and, above all, his victim, Léa Clermont-Dion, was a minor at the time of the facts.

Other cases

But on November 29, Simon Lamarre, an elementary school teacher who filmed the crotch of women and teenagers, received a conditional discharge from judge Jean-Jacques Gagné (here too, at the Criminal Court) . Although the accused still had “deviant sexual interests” towards young people and “hostility towards women”, the magistrate considered that the risk of recidivism was moderate, that his victims did not have any after-effects and that he was in the public interest that he can continue to provide for himself and his family. “Should we encourage the accused in his convincing rehabilitation or increase his isolation through stigmatization? Asked the judge.

This decision caused a stir. The next day, the Ministry of Education revoked Simon Lamarre’s teaching permit.

Also in November, it was in anonymity that a janitor was fired, under labor law, from the Marguerite-Bourgeoys school service center. Over the years, twenty of his colleagues have lodged complaints against him, saying that he touched their buttocks, followed them to the bathroom … From changing schools to promising never to start again, he was able to crack down for 10 years , collective agreements providing that the stains in his file are erased each time when there was no recurrence in a period of 12 months.

The contexts, the acts complained of, the age of the victims and the courts which tried these cases are distinct. In addition to criminal courts, a sexual offense can be dealt with across the spectrum of collective agreements, labor standards, civil law (damages claims such as those against Gilbert Rozon) or human rights (the Human Rights Commission dealing with cases of sexual harassment).

For the public, it is difficult to see clearly through these different regimes and to understand the sentences imposed – or not – on a person accused of sexual assault.

On reading dozens of judgments handed down over the past two years, it is clear that if the judges underline the seriousness of sexual violence and in certain cases qualify it as a “scourge”, their decisions go in several directions.

Between exemplary sentence and absolution

Normally, when it comes to minors, judges have less and less latitude, minimum sentences having been established from 2008.

“Even if the gesture is of little seriousness in terms of violation of physical integrity, it is serious on many other levels, in particular as regards the necessary protection of the unfinished autonomy of a minor, recalls Julie Desrosiers. , professor of law at Laval University. We protect our nascent sexuality, its even greater incapacity than for an adult, often, to say no. ”

In the case of an adult, the nature of the sexual act will be taken into account more, adds Mr.^me Desrosiers, “and the judge can give conditional discharges”.

If any form of sexual assault is unacceptable, the fact remains that “criminal law cannot be our only tool for educating crowds”, notes for her part Anne-Marie Boisvert, professor of law at the University of Montreal.

M^e Boisvert mentions the collective agreements to be tightened, to avoid these cases where, as in that of the concierge cited above, “some still have many free games”.

“Couldn’t professional orders themselves also withdraw licenses? [comme l’a justement fait le ministère de l’Éducation pour l’enseignant voyeur] ? Could we consider having the equivalent of the Human Rights Commission that could carry out prosecutions on behalf of victims? We are far too obsessed with criminal law and we lack the imagination to consider other ways of doing things. ”

But the judicialization of sexual assault, which already affects several regimes, leads to its share of disparities. Thus, notes Rachel Chagnon, by virtue of the law specifically aimed at combating sexual violence in higher education establishments, it is a safe bet that the janitor of the Marguerite-Bourgeoys school services center, who has cracked down on sexual violence for 10 years. women would have been pinned much sooner if he had committed the same acts while he was in the service of a university. “At university, the complaints would not have been erased. There would have been an institutional memory. ”

Same distinction compared to native aggressors. Faced with an indigenous accused, judges must take into consideration, specifies the Gladu decision of the Supreme Court, “the distinctive systemic or historical factors which may have contributed to delinquency.” The judge must also consider what types of sentencing procedures are appropriate given the accused’s native heritage or ties ”.

The perverse effects of severe penalties

One thing is certain, observes Rachel Chagnon, a heavy sentence in the Criminal Chamber is far from necessarily what all victims want.

Particularly severe penalties can even have their perverse effects, notes Mr.^me Green wood. “The higher the stakes – a heavy prison sentence, an entry in the register of sex offenders – the less the aggressor will make an admission of guilt”, while the acknowledgment of wrongs is often central for the victims.

Rachel Chagnon also agrees. “When judges perceive certain penalties as being too severe, they hesitate to apply them. This seems to be what the judge thought of the teacher. [qui filmait l’entrejambe de femmes]. ”

We certainly do not want to return to the “trivialization of wandering hands”, insists Anne-Marie Boisvert, but generally, “when the wrong [subi par l’agresseur] is disproportionate to the real trauma, many victims themselves find that it is not worth the trouble to file a complaint. When a slap on the buttock can earn you an entry in the register of sexual predators, it’s a bit of coffee ”.

A very broad definition

This is because the definition of sexual assault is very broad these days. As summarized by M^me Boisvert, it goes “from the stolen kiss to gang rape”.

Of course, the penalties subsequently take into account the relative gravity of each sexual assault, but “certain jurists, who are aware of this, wonder if there would not be reason to rephrase all this, to return to the distinction between touching and rape, ”she continues.

Julie Desrosiers regrets that we are still at this old conception of rape, as if it was necessary to have been “gagged in a wooded area” to be considered a victim of sexual assault. “What people finally need to understand is that sexual abusers are ordinary people who operate in a culture that trivializes sexual violence. ”

When it’s known, when it’s said, when justice has seen it, “that’s where it stops. The stigma of being identified as a sexual assailant is such that the convicted person reoffends much less than is generally believed. Those who reoffend are those who have a real problem of sexual deviance, which is not the case for the majority of them ”.

Like Rachel Chagnon and Anne-Marie Boisvert, Julie Desrosiers does not believe that prison is the panacea. “But victims, like society, want a denunciation. If Léa Clermont-Dion – a first in class, chosen to do an internship – was my daughter, I wouldn’t want her boss’s behavior to remain hidden, I wouldn’t want to contribute to the culture of silence. ”

Professor Martine Delvaux, author of books on sexual assault, indicates that as it is estimated that one in three women is the victim of one form or another of sexual violence, solutions will have to be found for justice to be served. . “But I don’t know which ones. Prioritize violence, go for more precise definitions … that seems dangerous to me, given what we are trying to convey on the continuum of violence […]. ”