Examination of the falsity of the facts in the context of the offence of slanderous denunciation

The offence of slanderous denunciation sometimes makes it possible to open a judicial debate on the reality of facts that had initially been prevented by a dismissal.

But in what cases and how does a court seized of facts of slander assess the falsity of the facts denounced?

“One cannot accuse falsely and with impunity¹”. It is in these terms that Philippe Naepels, Patrick Poivre d’Arvor’s lawyer, justified the filing of a complaint for facts of slanderous denunciation against 16 women who had filed a complaint against the latter for facts of rape and sexual assault.

Indeed, it is useful to recall that the offence of slanderous denunciation, defined in article 226-10 of the Penal Code, does not repair an attack on honor but tends to sanction a denunciation that has incurred judicial, administrative or disciplinary risks. It is not a question here of “clearing one’s honor”, but of sanctioning a misuse of the legal system.

On the merits, as soon as the denunciation meets a certain number of criteria², it will be up to the complainant to demonstrate the falsity of the facts denounced as well as the bad faith of the denouncer.

The falsity may be only partial; in some cases it is irrefutably presumed, although judges are usually free to assess it. If the slanderous denunciation does indeed lead to a debate on the reality of the facts denounced, the scope of the decision pronounced should be well circumscribed and should not be assimilated to a “return match”.

Partial falsity or complete falsity

The denounced facts do not necessarily have to be completely imaginary but can simply turn out to be “partially inaccurate” (article 226-10 CP), as long as “the misrepresentation concerns essential elements, likely to have an impact in terms of sanction³”.

A claim for rape can thus lead to a conviction for slanderous denunciation even though the reality of the penetration is established, the distortion of the facts relating to the alleged lack of consent of one of the partners.

Having said this, it should be kept in mind that in some cases judges are not free to assess the falsity of the facts.

Limited scope of the irrefutable presumption of falsity of the facts

Indeed, since the law of July 9, 2010, any final decision of acquittal, discharge or dismissal “declaring that the act was not committed or that it is not attributable to the person denounced” gives rise to an irrefutable presumption of falsity of the fact.

Judges will therefore have to consider the falsity of the facts established in the presence of one of these three decisions, provided that it is expressly motivated by the absence of materiality of the crime or its imputability to the accused and does not merely note the simple insufficiency of charges or the existence of a doubt.

The Court of Cassation⁴ ensures the strict application of this presumption and overturns judgments which merely note that “the reality of the violence was not demonstrated⁵”, “that the proof of the facts denounced was not reported and that there was at least a doubt⁶”, or which note the existence of a judgment of the Instruction chamber pronouncing a simple dismissal⁷.

In the absence of such precisely reasoned decisions, the court regains its discretion.

Extended area of freedom of appreciation

On the other hand, in the absence of such a decision⁸ “the court seized with the prosecution of the informant shall assess the relevance of the accusations made by him”. It is therefore up to the prosecution and the civil party to prove the falsity of the facts denounced, which can be difficult.

Indeed, the proof that a fact did not occur is sometimes qualified as diabolical (probatio diabolica) because it would be difficult, if not impossible, to prove. But more often than not, the proof of a negative fact consists in the positive proof of the contrary fact. Thus, to stick to the case mentioned above, the falsity of a report of rape in a closed office can be proven by proving the consensual nature of the sexual intercourse or its material impossibility (by showing, for example, that the perpetrator could not have been present where the reported facts occurred).

Slanderous denunciation thus gives the court the opportunity to examine the reality of the facts, reversing the roles (yesterday’s complainant becomes the defendant, and vice versa) and ignoring the possible statute of limitations. On the other hand, the evidentiary difficulties remain in matters of sexual violence: proving the falsity of a rape or sexual assault is as difficult as proving their reality in the absence of material elements.

In a case of slanderous denunciation, the roles are certainly reversed, but one must be careful not to extend the analogy with the initial procedure too far, because it is the responsibility of the whistleblower that is at stake and not that of the complainant-denounced.

Thus, an acquittal for failure to prove the falsity of the facts does not mean that the facts were committed; failure to prove that the facts are not true does not mean that they are true.

Such a decision nevertheless offers a great opportunity for the defendant, by bending the law, to conclude that the facts denounced were true, the guilt of the denounced being presented as the logical reverse of the innocence of the informant.

It is a risk, especially in a media file, which must be measured.