French law VS Belgium law
In France
Before the law of July 30, 2020, introducing two new aggravating circumstances to moral harassment, suicide and attempted suicide, we were faced with an absolute legal vacuum, a legal vacuum that was all the less understandable since there was no not in the sphere of work. We were faced with exactly the same aberration for moral harassment.
Moral harassment at work was recognized in 2002, confirming years of labor court case law, while we had to wait until 2010 for moral harassment in the couple, psychological violence, to be recognized and integrated into the Penal Code. A legal incrimination was only introduced in France in 2010: “The violence provided for by the provisions of this section is repressed regardless of its nature, including if it is psychological violence” article 222-14 -3 of the penal code.
All these micro‐violences: lies, sarcasm, insults, contempt, humiliations, denigration, isolation, financial dependence, threats are recognized in a specific offence. This psychological violence, this cement of violence, without which no woman, no individual, cannot accept the unacceptable, tolerate the intolerable. Because after possessing his mind, the executioner will need to possess his body. And irreversibly, physical violence will set in.
Yet death is often the outcome of such violence.
The Grenelle against domestic violence, is a set of round tables organized by the French government between September 3 and November 25, 2019. Its objective was to bring together people affected by issues related to domestic violence, in order to determine measures to take to fight them.
It is this Grenelle which led to the inclusion in the law of the concept of forced suicide. The constraint, highlighted by Véronique Wester‐Ouisse, lecturer in private law and criminal law and now Deputy Prosecutor in Quimper, was both to ensure compliance with the principle of criminal legality: nulla poena nullum crimen sine lege; no possible condemnation of an act, even if it would be extremely shocking, without the legislator having provided beforehand that it should be penalized and to have a clear, precise text.
Véronique Wester‐Ouisse also made it possible to draw up a picture of the existing incriminations and to note that none could find application in the event of suicide caused by the repeated violence and humiliation of a spouse.
In Belgium
The Belgian legislator has provided for several provisions that can apply to cases of gender-based violence, whether committed in a marital setting or not.
- Law of November 24, 1997: Aims to combat violence within the couple. It came to modify article 410, paragraph 3 of the Penal Code and provided for an aggravation of the penalty when the offenses and crimes referring to the offenses of intentional blows and injuries and intentional homicide have been committed against a spouse or a similar person.
Law of November 28, 2000: Penalizes the mutilation of female genital organs through article 409 of the Penal Code. This reform is fundamental since it makes it possible to recognize these practices as constituting gender-based violence.
Law of 28 February 2003: Provides that family housing is allocated to the spouse or legal cohabitant who suffers acts of physical violence from their partner.
Law of 10 May 2007: Establishes as an aggravating circumstance the fact of having committed an offense against a person because of his sex.
Law of 26 November 2011: Recognition as an aggravating circumstance of the state of vulnerability in which women find themselves due to their state of pregnancy, the legislator put in place a specific form of protection for women’s rights.
Law of February 23, 2012: Authorizes persons, guardians of professional secrecy by state or by profession, to inform the Crown prosecutor also in the event of violence between partners.
Law of May 15, 2012: Provides that if an adult person at the residence represents a serious and immediate threat to the safety of one or more persons occupying the same residence, the Crown prosecutor may order a residence ban on the regard to that person.
Law of June 15, 2012: Establishes as an offense the non-compliance with the ban imposed on the person concerned. The latter may incur a prison sentence or a fine.
Law of January 14, 2013: Establishes a series of discriminatory motives, including that linked to the sex of the person, in aggravating circumstances of the offenses of intentional blows and injuries and homicide within the Penal Code.
The limits of Belgian law
The majority of the laws cited above only apply in cases of physical violence. Thus, these protections and mechanisms cannot be envisaged in the event of moral violence and harassment.
Magistrates have tools to punish murders or assassinations perpetrated against women because they are women. However, some feminist associations and authors of legislative proposals plead for the need to include femicide as an independent offense within the Penal Code. It is necessary for Belgian legislation to recognize this violence as being systemic, as stemming from the deeply patriarchal society in which we find ourselves, so as not to make the sexist nature of the violence invisible.
Regarding forced suicides, we find ourselves in Belgium facing an absolute legal void regarding this issue. A bill was tabled by Vanessa Matz, member of the Humanist Democratic Party (cdH), in June 2021. The author proposes to increase the penalties provided for in articles 442 bis and 442 ter of the Penal Code relating respectively to the offense of harassment and the offense of aggravated harassment when one of the perpetrator’s motives is hatred, contempt or hostility towards a person because of a specific characteristic. When the harassment has led the victim to commit suicide, it will be a question of doubling the minimum of the correctional sentences provided for by these previous articles.
Murder or assassination cannot found a culpability. Admittedly, in the event of a spouse’s suicide, physical or psychological violence has led to death, but:
- it is the person himself who by his act of suicide is the cause of death;
- it will lack the intent to kill most of the time. By definition, the perverse spouse uses his victim, needs it. His disappearance, in principle, does not help “his business”.
“The act of provoking the suicide of another is punished by three years’ imprisonment and a fine of 45,000 euros when the provocation was followed by suicide or a suicide attempt”.
Although it may indeed be considered in some cases, this offense is too restrictive:
- it is necessary to demonstrate provocations to suicide, real incitements to suicide pronounced by the respondent, directly to the address of the spouse;
- there must be a complete passage to the act (a suicide or an attempt);
- there must be an intention of the provocateur aimed at causing the spouse to commit suicide Effectively ;
However, as we have already mentioned above, it will be difficult to find such intentions in someone who needs the object of his perversion.
La lecture du texte d’incrimination exclue d’emblée une quelconque application au suicide de conjoint. En effet, l’article 223‐1 n’incrimine qu’une exposition à un risque immédiat de mort « par la violation manifestement délibérée d’une obligation particulière de prudence ou de sécurité imposée par la loi ou le règlement ». Ne sont concernés ici que les obligations de sécurité et de prudence d’ordre technique.
Article 221-6 refers, for the definition of recklessness, to article 121-3 of the Penal Code, which is one of the most complex texts there is. The application of this text to the suicide of a spouse supposes that this suicide is qualified as homicide, that is to say the death of another, which implies demonstrating a causal link between the “recklessness” and this death. , which others have moreover inflicted on themselves. The reasoning imposed by article 121-3 defining recklessness is paved with pitfalls, the first difficulty to be resolved being that of the certainty of causality. It must first be demonstrated that the death was caused by carelessness, even partially; the causal link must to exist, in a certain way. Applied to our hypothesis, it must be demonstrated that the violence and degrading remarks observed caused or at least contributed to the suicide. If the causal link exists, then a distinction must be made between two types of causal link.
Article 121-3 distinguishes between direct causation, between recklessness and death, and indirect causation.
The causality is direct if the imprudence was decisive in the production of the damage (art. 121-3 paragraph 3).
The causality is indirect if the imprudence created the situation which allowed the realization of the damage, or if the respondent has not provided for a measure to avoid it (art. 121-3 paragraph 4).
Applied to our situation:
- Psychological or physical violence is a direct causality if this violence is decisive for the suicide of the spouse;
- Psychological or physical violence is indirect causality if this violence has enabled the suicide to be carried out, or if the defendant has not planned any measure to avoid it.
These texts, which are complex, have been drawn up for situations of the material accident type, and in no case for cases of psychological violence. Using them for spousal suicides adds, to the subtlety of the situation of intra‐family violence, legal subtleties that are unsuited to the situation. In addition, qualifying provoked suicide as manslaughter would imply being able to qualify psychological or even physical violence as “reckless”, State of play on the notion of forced suicide in Europe p 8 notwithstanding their irreducible voluntary nature. This qualification must therefore be rejected.
The offense of willful violence resulting in death without intention to give it, often called “deadly blows”, is criminalized in article 222-7 of the Penal Code; the penalties are aggravated by article 222-8 when they have been committed by the spouse, cohabitant or partner of PACS. To criminalize the suicide of a spouse, it is therefore preferable to start from the existing one by amending it in the simplest way possible.
The reflection was based on positive law which had a text criminalizing the harassment of a spouse which could serve as a basis for the criminalization of suicide caused by a spouse: “the fact of harassing one’s spouse, one’s partner bound by a civil pact of solidarity or his concubine by repeated remarks or behaviors having for object or effect a deterioration of his living conditions resulting in an alteration of his physical or mental health”. Article 222-33-2-1 of the penal code.”
And a giant step has been taken, 10 years after the recognition of psychological violence in the couple: forced suicide entered the Penal Code (article 222-33-2 1) in the same way as the influence. Parliament has definitively adopted (Law No. 2020-936 of July 30, 2020) the law aimed at “protecting victims of domestic violence”. When the harassment led the victim to commit suicide or attempt to commit suicide, the perpetrator’s sentence will be increased by 10 years’ imprisonment and a fine of 150,000 euros.
Article 222-33-2-1 of the Penal Code: The fact of harassing his spouse, his partner bound by a civil pact of solidarity or his concubine by repeated remarks or behavior having for object or effect a deterioration of his living conditions resulting in an alteration of his physical or mental health is punished by three years’ imprisonment and a fine of €45,000 when these acts have caused total incapacity for work less than or equal to eight days or have not resulted in any incapacity for work and five years’ imprisonment and 75 €000 fine when they have caused total incapacity for work for more than eight days or have been committed while a minor was present and attended.
The same penalties are incurred when this offense is committed by a former spouse or a former partner of the victim, or a former partner linked to the latter by a civil pact of solidarity. The penalties are increased to ten years’ imprisonment and a fine of €150,000 when the harassment led the victim to commit suicide or attempt to commit suicide.
Contact us
info@forcedsuicidedomesticviolence.eu
