Whether on the defense or civil side, women criminal lawyers are increasingly on the front line in cases of sexual and gender-based violence.
“No sex under the dress.” In the legal profession, has this adage resisted the #MeToo movement? Since the Harvey Weinstein affair broke out on October 5, 2017, provoking an unprecedented movement to free speech around sexual and gender-based violence against women, French lawyers are increasingly on the front line in these cases. The feminization of the profession – more than 55% of the workforce – and the explosion in the number of complaints for this type of offense do not explain everything. On either side of the bar, the voice of the “tenoras” would carry further than that of the tenors of the bar when it comes to gender-based violence.
He “it is certain that this allowed female lawyers to be chosen as a priority in this area”including on the side of the defense of the accused, observes Julia Minkowski, who created the women’s criminal club in 2015. For the lawyer of actor Nicolas Bedos, accused of rape and sexual assault by three women, he is undoubtedly “easier for a woman to question the accusation than for a man”. At the risk of being perceived as a “traitor to his kind”like the lawyer of Hollywood producer Harvey Weinstein, Donna Rotunno, Julia Minkowski, co-author of The Lawyer Was a Woman: The Trial of Their Lives (Editions Lattès), prefers to talk about a “conflict of loyalty” between the fact of“to be a feminist and a criminal lawyer extremely attached to the principles of the presumption of innocence and the statute of limitations”.
Pro-#MeToo but anti-#BalanceTonPorc
Are the two really opposed to each other? Pauline Baudu-Armand, who defends Tariq Ramadan in France, where the Islamologist is being prosecuted for rape against four complainants, denounces a “Manichean positioning” around the movement: “If you denounce the abuses of #MeToo, you are not [du côté de] #MeToo. For me, it’s case by case.” Her colleague Yaël Hayat, who represents Tariq Ramadan in Switzerland, where he was acquitted at first instance in another rape case, points out a “drift in which everything revolves around women”. In Geneva, “the court questioned the probative value of the complainant’s statements, as it would for any offense. The fact that we can dissect this statement should not create indignation”judges the lawyer, who confirms that since #MeToo, accused men have called on women more to defend them, in a strategic approach.
“There are speeches, defenses which unfortunately become inaudible when they are made by a man.”
Yaël Hayat, lawyer for Tariq Ramadanat franceinfo
It also happens that lawyers labeled “defense” in these cases are approached by plaintiffs. Fanny Colin, who represents director Christophe Ruggia, accused of sexual assault by actress Adèle Haenel when she was a minor, claims to have been solicited in a post-#MeToo media case in France, on the civil side. “It must have seemed like an asset” facing the opposing party, believes the lawyer. If she judges that this movement that started in the United States was “very positive”Fanny Colin regrets the form it took in France with the hashtag #BalanceTonPorc. “We do not take justice into our own hands. We have gone from a movement of freedom of speech to a movement of belief in speech, without doubt possible”develops the one who notably defended the musician Ibrahim Maalouf, acquitted of accusations of sexual assault brought by a 14-year-old schoolgirl. “We must never, whatever the cause we defend, move away from the principles of the rights of the defense, fairness and adversarial matters”insists Fanny Colin, in the name of the risk of judicial error.
A forum against “the presumption of guilt”
In these delicate and complex disputes, several lawyers consider that their role is “more important in defense” of the accused. This is the case of Corinne Dreyfus-Schmidt, who defends one of the five rugby players soon to be sent to court for the rape of a student in Bordeaux in 2017. The criminal lawyer judges “difficult to go upstream” when accusations were publicized: “The press widely echoes the statements of the complainants automatically recognizing their victim status even before any legal debate. Guilt is therefore already in some way established.” With around a hundred sisters, she co-signed the article published in The world after the scandal caused by the awarding of a Caesar, at the end of February, to Roman Polanski, prosecuted by the American courts for illegal sexual relations with a minor in 1977. The latter publicly “forgiven” to the director and the filmmaker admitted his guilt for embezzlement of a minor. But he is also accused of rape or sexual assault by eleven other women, accusations which he contests. This collective text on“disturbing presumption of guilt” in matters of sexual offenses was initiated by the American filmmaker’s lawyer, Delphine Meillet. The latter, however, ensures that it navigates between the civil party and the defense in this type of case.
“I do not sacralize one word or the other, that for me is what being a feminist is. It is stubbornly seeking equality. The subject is knowing how to listen, hear, consider and investigate.”
Delphine Meillet, lawyer for Roman Polanskiat franceinfo
Many people, on a professional level, claim not to choose sides. Mélodie Kudar, lawyer at the Versailles bar, is “best lawyer being on both sides”. In his pleadings, no “irrecoverable monster” on one side or “liar” the other. Only the “evidence” to demonstrate guilt or not. These back and forths between perpetrators and victims “presumed” allow him to make “pedagogy”. “I have very long discussions with my clients around the notion of consent”, “misunderstood”.
A shared experience
Laure Heinich is located on this same ridge line. She represents both plaintiffs in the PPDA and Ramadan cases and the CEO of Assu 2000, Jacques Bouthier, indicted for rape of a minor and human trafficking. The lawyer, who denounces the mistreatment of the judicial institution in Justice against Men (Editions Flammarion), reports having “accompanied by many customers on the way” recognition of their actions. And to have been able to explain this process to those she assists with their complaints. However, facing the“impunity” of certain behaviors, she understands “recourse to media justice” when this is possible: “It’s a debate that advances society so much.”
Jade Dousselin, whose name is both associated with the legal victory of the initiator of the #BalanceTonPorc movement in France and with the defense of LFI deputy Adrien Quatennens, convicted of domestic violence, defends this principle of “freedom of expression”which she pleaded during the appeal trial for defamation of Sandra Muller, creator of the hashtag. “If we had a justice system capable of being rapid, efficient and attentive, the presumption of innocence would be protected and the question of opposing it to freedom of expression would be null and void.” she explains. On these questions, she maintains that a “female lawyer can have a different educational focus”.
“When I defend a man, I will be aware of certain things. We have all, at one point, felt a form of male domination, in whatever way. It is necessarily an angle of view which brings to the debate but which also allows us to delimit what concerns law and morality.”
Jade Dousselin, lawyer for Sandra Muller (#BalanceTonPorc) and Adrien Quatennensat franceinfo
This shared experience undoubtedly makes it easier to collect the words of complainants when they enter the door of an office. For this violence, which mainly affects women, “it may be easier for some victims to talk to a woman”, confirms Anne Lassalle. This lawyer from the Saint-Denis bar, who represents dozens of actresses in the theater sector, considers above all that it is “difficult”for this type of offense, to be on both sides of the bar: “This could be experienced as violence for my clients.” While respecting “infinitely the work of defense”, Anne Lassalle questions the “sacrosanct principle of criminal procedure” – the rules which govern a procedure from the complaint to a judicial decision – brandished by some on the opposing side. “It’s not just that, otherwise we just maintain a system and nothing happens. Hfortunately the press was there to reveal certain situations”points out the lawyer, recalling in turn that freedom of expression is “a value as fundamental as that of the presumption of innocence, as regularly reminded by the case law of the Court of Cassation and the European Court of Human Rights”.
Lawyers for a “cause”
This commitment on the part of the civil parties is also not negotiable for Elodie Tuaillon-Hibon. “If we have one foot on each side of the bar, we are in submission to the law as it exists, we are not trying to change things”, believes the one who was involved well before #MeToo in the defense of victims of sexual violence. Known for her interventions in media issues – Georges Tron, Julien Bayou, Gérald Darmanin –, she draws a line of demarcation between “the lawyers who campaign” for women’s rights “And the others”. “We don’t do the same job”, she assures. And to denounce this “another activism which was created opposite, to protect a presumption of innocence which is absolutely not attacked”.
Her colleague Carine Durrieu Diebolt is fighting on the same side. Invested since “almost ten years” in the fight against this violence, she explains that she “much trained”particularly in “psychotrauma”to can “pleading astonishment and dissociation” at the time of a rape. This lawyer, who also crosses swords in cases involving renowned defendants – Gérard Depardieu, Luc Besson – claims to have acquired over time “specific skills, which are used by victims and not by aggressors”. Carine Durrieu Diebolt assumes being “the advocate of a cause” and to plead in court “against patriarchal society and rape culture”.
“It is a dispute with a law in flux, it is useful to have lawyers who are involved. For the victims, it is a criterion that they use. They feel better understood, more secure.”
Carine Durrieu Diebolt, lawyer specializing in victims’ rightsat franceinfo
Anne Bouillon also tries to“introduce politics into the courtroom”. Lawyer at the Nantes bar, she works “for two decades” alongside the women who bring to justice the violence that“they suffer”. #MeToo may have been there, six years later, “Their word is always subject to doubt. When we say that we end up with a presumption of credibility of the complainants, that is not at all my experience”, she testifies. For the criminal lawyer, there is no question of opposing “great principles” rights and protection of victims. “I have the presumption of innocence anchored in my bodycertifies Anne Bouillon. But I ask that women be treated equally.”