Sexual harassment, Penal Code, Constitutional Council, principle of legality, crimes and penalties, nullum crimen, nulla poena sine lege, criminal law, Beccaria, law of 17 January 2002, law of 3 August 2018
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Abstract
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Abstract
The crime of sexual harassment was introduced in the 1994 Penal Code and has undergone several changes, with the Constitutional Council playing a crucial role in its definition and legality.
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[...] The principle of legality of crimes and penalties At what date and how was the crime of sexual harassment created by law? The crime of sexual harassment was first introduced with the entry into force of the 1994 Penal Code, but caused many difficulties due to a difference in definition with the crime of sexual harassment provided for in the Labour Code. In this previous version before 2012, sexual harassment was the fact «to harass others in order to obtain sexual favors ». [...]
[...] Beccaria's principle of legality of crimes and penalties was to respect the principles of equality and necessity. In its jurisprudence, the Constitutional Council appears very cautious regarding its control of the principle of criminal legality, if it strictly controls the material legality of crimes and penalties (i.e. the existence of a law incriminating any punishable behavior), it proves to be much less demanding concerning the necessity of crimes and penalties, out of fear of contravening the freedom of the legislator and not leaving him with sufficient room for maneuver to legislate. [...]
[...] The repetition is clearly provided as an element constitutive of the offense. This new drafting allows for the differentiation between moral harassment and more specific sexual harassment. It requires that the incriminated behaviors cause an affront to the dignity of the victim or create a situation that is intimidating, hostile or offensive. These clarifications appear as sufficient in relation to the constitutional principle of clarity and precision of the law since the constitutive elements appear clearly and are defined in a sufficiently rigorous manner. [...]
[...] The term harassment could be defined by reference to the offense of moral harassment, thus the offense was constituted when there were repeated behaviors having a negative impact on the victim's life. The Constitutional Council censured the new definition of sexual harassment which notably removed the authority relationship without which the text is less clear and precise. As a result, the Constitutional Council decided on the immediate repeal of the offense of sexual harassment. Is the new incrimination resulting from the law of 6 August 2012 in conformity with the Constitution and does it meet the requirement of clarity and precision? [...]
[...] In conclusion, the control of the Constitutional Council is not entirely in line with the vision of criminal legality of the revolutionaries and Beccaria since it does not take sufficient account of the question of the necessity of crimes and penalties, which was an integral part of the principle imagined by Beccaria. However, from a formal point of view, the Constitutional Council is demanding since it controls the source of crimes and penalties (the law) and checks its drafting. [...]
