How far can lawyers go to defend their clients?

On the one hand, a victim who became, over the course of the trial, the symbol of violence against women. On the other, 51 men tried since September 2, before the Vaucluse criminal court, for having raped her. Among them, Dominique Pelicot, her husband. In the box, he is the only one to recognize the facts. Yes, for around ten years, he drugged his wife and recruited his co-defendants on the Internet so that they would come and abuse her while he filmed them.

What they defend themselves from when they parade at the bar. They all claim to have thought that Gisèle Pelicot was sleeping, was consenting, and that all of this was part of a sexual “game” imagined by the couple. A defense strategy undermined by the broadcast of videos of the rapes suffered by this 71-year-old woman.

Certain statements by the defendants’ lawyers sparked controversy on social networks where the trial is closely followed thanks to live tweets from numerous accredited journalists. Me Guillaume de Palma caused astonishment in the courtroom by declaring that “there is rape and rape”. Same indignation when one of his colleagues asks the civil party if she does not have “exhibitionist inclinations”. Or when Me Isabelle Crépin-Dehaene explained that certain defendants may have legitimately thought, upon seeing certain photos, that Gisèle Pelicot “was willing and playful to go and share a moment with three people”. Me Nadia El Bouroumi was criticized for having published on social networks a series of videos in which the lawyer attacked the victim in a playful tone.

“If I choose to do it, I do it thoroughly”

Co-president of the Association of Criminal Lawyers, Karine Bordié regrets “the way in which the work of the defense lawyers in this hearing is vilified” on social networks “by people who have not set foot inside the courtroom and who did not attend a second of the proceedings.” “It’s as if the idea of ​​an accused being defended became unbearable,” explains 20 Minutes this criminal lawyer who has been wearing the dress for twenty years. Defending a person accused of committing rape is not defending rape, she summarizes. In certain cases, the facts are difficult to dispute. She will then “try to make her client listen to reason” because, “the goal is not to drive someone into a wall, to let them say anything and see them crash into direct “.

But for other cases, “there are ways to challenge the prosecution.” It doesn’t matter, in these cases, whether she believes in the innocence of her clients or not. “I’m not an investigator, I will never know the absolute truth. » Its aim is to help them put in place “a coherent defense in relation to their personality and the alleged facts”, and to “support their declaration of innocence”. “If I choose to do it, I do it thoroughly. And if I have grounds to demonstrate that witnesses are lying, that civil parties are lying, that forgeries have been produced, I will do it. What interests me is that the judicial fate of the person I defend is as fair as possible, that the judicial functioning is worthy of the name. »

A formal immunity regulated by law

To do this, Me Bourdié says he respects the limits set by law. “We don’t insult people, we don’t threaten them. » But, “we must not confuse combativeness and lack of respect”, insists the criminal lawyer. Before adding: “In our system, we must be able to call into question the words or accusations of each of the parties. From the moment the judicial truth emerges from this contradictory debate and the careful examination of the evidence, we must be able to discuss everything. »

“We can say what we want to defend our clients but there are limits in criminal matters and in disciplinary matters,” observes Me Mandine Blandin, criminal lawyer at the Versailles bar. The law of July 29, 1881 in fact provides that “neither speeches delivered nor writings produced before the courts” can give rise to proceedings for “defamation, insult or contempt”. Later, in 1933, the Constitutional Council recalled that “justified abuses of the lawyer’s freedom of expression must have as their object the very merits of the trial without exceeding the limits of the rights of the defense”. But as the criminal chamber of the Court of Cassation subsequently clarified in a decision of February 27, 2001this robe immunity does not apply to comments made outside the courtroom. Those spoken in front of the press or on social networks can be the subject of prosecution by the Bar Association.

“Being hyperaggressive is useless”

“I don’t do morality, I do law. And if I have someone who tells me that he has committed serious acts and that, in the case, there is a way to plead innocence, I have no difficulty pleading it,” underlines Mr. Blandin . “If the case lends itself to pleading for a release or an acquittal or a dismissal of the case, I will bring his voice to him,” she assumes, recognizing that “from a point of view of public opinion, of ordinary citizen who does not ask too many questions, the lawyers of the victims or the civil parties have a better image” than those of the defense.

More information on the Pelicot affair

In cases with civil parties, such as sexual assault cases for example, the Versailles criminal lawyer explains that she is “sometimes less sensitive towards them” if she “believes” that her client did not commit the alleged acts. “But if the facts are recognized, it is more difficult because the victim necessarily inspires compassion towards the judges or juries. So if we bump into him, we will inspire something unpleasant that will harm our client. We must succeed in conveying defensive messages while being gentle with the victim. Being hyperaggressive towards her doesn’t help. You also need to show him kindness. »

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