Since the beginning of the case DSK, we speak of crimes and offences which are not defined in the same way in France and in the United States.

Rape and sexual assault

Prior to the law of 23 December 1980, the rape, which had not been defined in the penal Code, was understood in case law as “a sexual intercourse illegal with a woman without her consent”. It was exclusively vaginal intercourse. Since 1980, it is “the act of penetration that characterises the rape. There is no difference between the sexual intercourse, sodomy or fellatio imposed on the victim. It is a crime punishable by 15 years imprisonment (20 years, 30 years or life imprisonment depending on the aggravating circumstances).

The american law makes a distinction between sexual intercourse oral sex or anal sex (“sexual abuses”) and the more traditional (“rape”). Also retains it, in the presence of a blowjob forced and an attempt of vaginal penetration, the two qualifications are distinct : the sexual assault and attempted rape.

The american approach retains a separate offence for each of the acts committed during the aggression, and then added the applicable penalties. It follows a accumulation impressive charges and a sentence theoretical very high. A French judge not criticised not to the author of a rape, the fact that it has removed or attempted to forcibly remove the victim’s clothing prior to use. For him, this fact fits to the sexual assault as a whole. In the United States, 95% of the procedures end with a “plea bargaining”, a negotiation in which the defendant obtains the cancellation of some counts of the indictment in exchange for the “plead guilty”. This allows justice to be much faster.

Sexual harassment

Initially, the harassment is an offence under the labour Code. In France, the criminal Code has included it in the section devoted to sexual assaults from 1992. It is punishable by 1 year imprisonment and 15,000 euros fine. The criminality has evolved over time. Originally, sexual harassment, sanctioned the abuse of authority, committed by a superior on his (or her) subordinate(e) and entailed the use of “orders, threats, constraints, or pressures serious”. Since the law on social modernisation of 17 January 2002, the harassment is designed more extensively. Is now punished, without further precision, “the fact of harassing others with the goal of obtaining favors of a sexual nature”.

It follows that the harassment is not necessarily the fact of a superior (such as harassment or vertical), it can be committed by a single colleague at work (harassment horizontal). The criminal lawyers believe that this definition is too vague. One wonders, for example, if a single act is likely to be qualified of harassment ; in principle, the term includes the idea of repetition, but the text are not referred to. The harassment could now commit yourself by any means, one wonders at what point the expression of an inclination to be in love, for it is insistent, it becomes a crime to : sending daily roses or poems inflamed, the small hearts sent by SMS or “I love you” desperate to be left on e-mail by the abandoned lover, can they be considered as harassment ? The text does not exclude it.

Until now, the judges are addressed in a more consistent to retain the offence (relegation to a position subordinate or dismissal of the employee(e) who refuses the sexual advances of the employer, telephone messages that are obscene, etc). But this situation may evolve.

In the long term, it could accelerate a grassroots movement, initiated by the French society : the legalization of all its social relations, in other words, its americanization. In the United States, the harassment is more codified. This allows women to move more directly and more easily in the trial. More than a question of definition, it is a matter of perception of the society as a whole.


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