What would the inclusion of femicide in the penal code change?

The start of the march against sexist and  violence organized by #NousToutes, Place de la République in Paris, November 20, 2022.

This is a long-standing demand that still finds no response. Saturday November 25, the inclusion of femicide in the French penal code will be among the demands of the demonstrations planned throughout France against violence against women. Spearheading the marches, the collective #NousToutesdemandes “a definition that extends beyond the marital sphere”.

The term theorized by sociologists Jill Radford and Diana Russell in 1992 as the “murder of a woman because she is a woman” is now widely used in the media, social sciences and everyday language. Furthermore, the tragic countdown continues: since the start of 2023, #NousToutes has recorded 121 feminicides, a number which has been stagnating for several years.

From the podium of the United Nations General embly, Emmanuel Macron used the term in 2019, calling for “give legal status to this subject”. Four years later, in French criminal law, femicide is not an autonomous offense and, therefore, does not have its own definition and penalty.

A crime punished but not formally recognized

If the term feminicide is not legally recognized, an arsenal of repression exists: deliberately killing a woman because of her gender is an aggravating circumstance, as is committing murder as a partner. Since a law of July 9, 2010, exes are also targeted. Without naming them, the law already condemns femicides as aggravated murder and therefore allows sentences exceeding thirty years of imprisonment, such as life imprisonment.

However, these criminal qualifications “do not allow us to say a word about the crime perpetrated because of the sex of the person which is the result of patriarchal and systemic oppression”, opposes Violaine de Filippis-Abate, activist for Dare feminism! and lawyer. A position echoed by Maëlle Noir, member of the national coordination of #NousToutes and doctor of law: “Naming violence and giving it a criminal dimension also means giving it a symbolic dimension. »

However, it is this symbolic dimension that opponents of inclusion in criminal law reject. Carole Hardouin-Le Goff, director of studies at the Paris Institute of Criminology and Criminal Law at the University of Paris-Panthéon-as, regrets a desire to “vote criminal laws to simply recognize a social phenomenon and show the seriousness of the issue, while the tool to repress it exists. Criminal law therefore becomes a symbolic law”. She also warns of the risk of legislative inflation.

Recognizing a criminal specificity when a woman is the victim of a murder also poses a legal problem, according to the lawyer. “The law wants two things: to maintain neutrality and above all universality. This is the reason why criminal law does not distinguish between citizens – men or women”, she explains, recalling that the principle of equality before the law is constitutional. Moreover, the terms “ infanticide ” And ” parricide » were repealed from the penal code in 1994 « so as to consider any situation”, analyzes Victoria Vanneau, legal historian at the law and justice research mission, created at the initiative of the CNRS and the Ministry of Justice. “ Putting femicide in the penal code goes against the grain of this desire for neutrality and universality”adds Carole Hardouin-Le Goff.

What definition?

Does this definitively bury the debate? “The law must reflect society and needs to adapt to the lack of fairness, rather than equality for that matter”, pleads Maëlle Noir. As for the risk of unconstitutionality, it is “Constitutional Council, in the event of referral, to rule in order to know whether femicide infringes the principle of equality before the law”recalls Violaine de Filippis-Abate.

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However, even before considering a referral to the Constitutional Council, the debate was never really invited to Parliament. In 2020, a parliamentary report concluded that “the legal inclusion of the term femicide seems to pose more difficulties than it would provide real solutions to the care of women victims of violence”recognizing however a need to develop its use in other spheres.

Read the decryption: Article reserved for our subscribers “Femicide”, this term which embarres the judiciary

Currently, the legal arsenal intended to punish femicides is limited to the marital sphere. A limit that Inter Orga Féminicides, a meeting of feminist ociations, wishes to overcome. For a year, its members worked on a definition and concluded that “killing or forced suicide of a woman because of her gender, regardless of her age or circumstances”, therefore including the murder of a woman by a work colleague, for example. Maëlle Noir recognizes that it is “an activist definition that is difficult to implement but which can be adapted and codified”.

In reality, there is no single definition of femicide. In 2012, the World Health Organization – which speaks of “femicide” – lists four cases with different motivations. The widespread acceptance, retained by Larousseis the “murder of a woman, girl or child because of their female gender”. A sense close to vocabulary of law and human sciences which speaks of “homicide”. The difference lies in the fact that a homicide can be intentional or not while the murder is the “voluntarily causing death to another”.

Victoria Vanneau recalls the difficulty of legally defining femicide. “For m crimes, as in Mexico or to Canada, these women were killed because they were women, but in the marital context, how can we prove that a spouse kills his wife because she is a woman? He kills her because she’s his wife, so it’s more complex. »

Coercive control, a notion that achieves consensus

Beyond these criticisms, would the offense allow for a better criminal response? Not so sure, according to Carole Hardouin-Le Goff. Today, when a judge cannot determine the aggravating circumstance of femicide in a murder, the criminal clification of murder remains. “In the case of an independent crime, if the elements are not all present, the judge cannot convict for “femicide” and it is up to the prosecutor to prosecute under a new head, like violence leading to death without intention of causing it. » A crime punishable by fifteen years in prison, compared to thirty years for murder.

However, a notion interests jurists, feminist ociations and politicians: that of coercive control. This involves one member of a couple going through the other’s phone, checking their clothing, monitoring their spending or even preventing them from hanging out with their friends. “Unlike control, where the victim is examined, it is simpler and more objective for a judge to ask whether a particular person exercised coercive control”compares Carole Hardouin-Le Goff.

Read the decryption: Article reserved for our subscribers Coercive control, a more precise notion to fight against femicide

Recognition of this mechanism is important for ociations in the prevention of femicide “because coercive control is considered at the base of the continuum of violence” which could lead to femicide, develops MaeBlack girl, who deplores that this concept applies exclusively within the couple.

In mid-April, Isabelle Rome, then minister for equality between women and men, launched a working group to study its possible entry into the penal code. “ In the feminicides that I judged, I found this mechanism 9 times out of 10”ured the former president of the ize Court. A desire to move forward on this issue also voiced by Bérangère Couillardthe current minister.

Dorian Jullien

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