As we approach the twentieth anniversary of the beginning of the Outreau affair, we observe, after the publication of the first Opinion of the CIIVISE (Independent Commission on Incest and Sexual Violence against Children), surprisingly entitled “About mothers in struggle”, a worrying questioning of the awareness and legitimate caution aroused by this judicial earthquake. The expert psychiatrist Paul Bensussan and our colleague Delphine Provence expressed themselves with accuracy and sobriety in the columns of Marianne. This earned Paul Bensussan in particular attacks of particular virulence.
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Defense lawyers consider it their duty to react to this questioning of an expert recognized as judicial truth, never accepted by a fringe of die-hard activists. For having had him cited before the Assize Court of Appeal, we know what Paul Bensussan’s contribution was in the Outreau affair and we had to respond to the allegations of some of his peers.
Two controversial recommendations
The recommendations of the CIIVISE have at least the merit of simplicity:
1. “Provide for the automatic suspension of the exercise of parental authority and of the visitation and accommodation rights of the parent prosecuted for rape or incestuous sexual assault against his child”
2. “Suspend criminal proceedings for non-representation of children against a parent when an investigation is underway against the other parent for incestuous sexual violence”
3. Provide, in law, for the systematic withdrawal of parental authority in the event of a conviction of a parent for incestuous sexual violence against his child”.
This last point is unquestionably the least controversial in our eyes: on the one hand because the Civil Code, in its article 378, already provides for the forfeiture of parental authority in the event of a crime or misdemeanor committed by a parent on his child, whether he is author or accomplice/on the other hand because the forfeiture, symbolic this time, of the parent author of incest is not contestable. However, we will observe that by proposing to make this forfeiture systematic, the CIIVISE deprives the court of the possibility of adapting the penalty to the singularity of each situation.
“By inviting children to ‘believe’, regardless of how the revelation arises, and by maintaining the confusion between ‘children’s words and mothers’ words’, the magistrate calls into question recent progress in the analysis of the reliability of a disclosure. »
On the other hand, the radical nature of the other two recommendations seems to us to be extremely dangerous. The opinion of the CIIVISE asserts that it is important ” to put an end to the denial of the reality of sexual violence against children “, not hesitating to denounce” the total deafness of the social investigation service about the child “. Judge Édouard Durand, co-chairman of this “independent” commission, not hesitating to affirm, in an interview with the Obs : “ We must deconstruct the system that generates impunity and help mothers to protect children.»
By inviting children to “believe”, regardless of the way in which the revelation arises, or its content, and by maintaining the confusion between “children’s words and mothers’ words”, the magistrate, no doubt moved by the nobility of the case, calls into question not only the recent progress in the analysis of the reliability of a disclosure (the term “credibility” had been removed from the questions put to the experts following the report issued by the Commission of Inquiry parliamentarian “responsible for studying the dysfunctions in the Outreau affair to avoid their recurrence”), but above all the principle of the presumption of innocence.
Similarly, proposing the immediate abolition of the right of access and accommodation of the parent in question, indiscriminately clearing the accusing parent of the offense of non-representation of the child, amounts to giving him the unprecedented power to punish without judicial intervention, in the name of the precautionary principle, which amounts to discrediting the ability of judges to discern.
“To consider that the false allegation is so rare, almost virtual, that any allegation must be regarded as true, is not only contrary to the laws of a judicial democracy. »
It is now a question, explains the opinion of the CIIVISE, of protecting not only the children, but the mothers, too often suspected of manipulating them, who would see themselves sanctioned by the judicial institution for having tried to protect their children, whose aggressor enjoys impunity. The commission tells you…
Here we are back at the Outreau front… If the children’s words can be sincere and credible, this does not imply systematic confusion between psychological truth (what everyone is convinced of having experienced) and historical truth (what is actually happened). By evoking the suggestibility of the victims, Paul Bensussan never spoke of childish lies in the Outreau affair, any more than in his publications. He first denounced the excesses and shortcomings of the legal experts, one of whom has since been struck off, constantly rewriting the case… He then and above all recalled the methodological rigor which should prevail in the collection as in the analysis of the child’s speech.
Her work on false allegations of sexual abuse in the context of parental separation was prefaced by Andrée Ruffo, magistrate, president and founder of the International Bureau of Children’s Rights, considering that it was necessary, in this area as in quite another, to learn to distinguish the true from the false.
To consider that the false allegation is so rare, almost virtual, that any allegation must be regarded as true, is not only contrary to the laws of a judicial democracy, but also constitutes a drift to which no lawyer could rally. In addition, these recommendations singularly call into question the ability of judges to discern.
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