A 2011 study revealed that for 10% of students school is a place of suffering. This is mainly due to the harassment suffered by children and adolescents all day long.
Un macabre fait divers revives the controversy of insecurity in our schools. But it has been several years since school, college or high school have been perceived by children as a place of insecurity. And it's not just harassment, it's also physical and verbal violence, death threats and incitement to suicide.
A phenomenon taken seriously by national education and, of course, parents. But how can we concretely help children in or around schools? To find out, we must go over all these facts of school violence one by one in order to determine the means to prosecute them.
School harassment is a variant of the crime of harassment, its particularity is that it is practiced between students of the same establishment, or in the vicinity of a school establishment.
School bullying is characterized when a "pupil has repeated comments or behavior towards another pupil with the aim or effect of worsening his living conditions".
Harassment results in an alteration in the victim's physical or mental health (depression, anger, drop in school results, isolation, etc.).
This covers verbal and / or moral violence, physical violence, acts of theft, racketeering ... and is characterized in particular by acts such as:
- Trying to kiss or undress a classmate,
- Being the victim of prejudices about their origins, their names and surnames, the way they dress ...
- Being decked out with nasty nicknames, being the target of insults, mockery, bullying, rejection with exclusion from groups ...
- Jostling on the stairs, beating, pinching, pulling on the hair, breaking glasses ...
Remember that harassment is insidious, the perpetrators act anonymously, often in groups. Faced with this phenomenon, children can feel anger, shame and guilt all at the same time, especially as this danger can sometimes be underestimated or even minimized. School is always seen as an initiatory passage towards social integration.
To help them, parents are advised to favor dialogue with the child and have as much information as possible on the actions, the comments made, and the dates on which they occurred. Remember to keep track of all messages sent on the internet, or on the phone (photocopies, screen shots, etc.)
All these elements will be useful in identifying the perpetrators of the harassment and will enable you to act both with the establishment and with the legal authorities.
Whatever the incriminated facts (harassment, incitement to suicide, death threats, etc.) the procedures are the same: The head of the establishment must be informed and brought to justice.
Information for the school head
A 2013 circular from the Ministry of National Education made school heads aware of the measures to be taken against all forms of harassment suffered by their students.
Whether the child is at school, college or high school, you must make an appointment with the head of the establishment and inform him of the situation. Do not hesitate to ask him what measures will be taken to protect the child and the action he intends to give to the report.
It will be up to the head of the establishment to summon the students (with their parents), to listen to them before implementing the disciplinary sanctions provided for in the internal regulations (up to exclusion) in order to protect the victim.
According to article 40 of the Code of Criminal Procedure, establishments have a legal obligation to report the facts to the public prosecutor.
They transmit all the information in their possession (name of the victim, the alleged perpetrators, the circumstances, the actions, etc.).
Any delay or failure to comply with this obligation to report will constitute a fault on the part of the establishment, the responsibility of which may be raised before the administrative courts (responsibility of the State by virtue of its agents).
Therefore two options are possible:
- Either the regularly informed prosecutor will consider the facts sufficiently serious, will initiate an investigation and initiate proceedings against the author.
- Either the parents will take the initiative of prosecution by filing a complaint with the constitution of civil party (to force the prosecution to initiate proceedings) against the harassers.
The law August 4, 2014, creates the new article 222-33-2-2 of the penal code, according to which any act of harassment is punishable by one year of imprisonment and a fine of 15 euros.
Filing a complaint
A minor can go alone to the police station or the gendarmerie to denounce the facts and file a complaint.
There will always be OPJ (Judicial Police Officer) specialized in the cases of minors ready and trained to hear them.
But it is an act often heavy and worrying for a child frozen by the fear of reprisals. Therefore, it is necessary that he is accompanied and supported by his parents who will act on his behalf (as the holder of parental authority) to file a complaint.
In any case, the law does not recognize the right of the child to become a civil party.
To be sure that criminal proceedings will be instituted and be able to claim damages, the parents must file a complaint.
Minors under 13 do not incur prison sentences or fines. This does not mean that they will not be judged, but that they will be the object of educational measures.
If the perpetrator is a minor aged 13 to 17 he incurs 6 months in prison and a 7 euros fine.
The penalty is increased if the harassment:
- Takes place with the use of the internet (social networks ...)
- Exercised on a minor under 15 years old
- Exercised on a vulnerable minor (sick, disabled, etc.)
- Obliges the child to be absent from class for more than 8 days (this is the equivalent of an ITT)
One of these circumstances increases the penalty to 1 year in prison and a 7 euros fine. Two of these circumstances (or more) aggravate the sentence to the tune of 500 months in prison and a 18 euros fine.
Adults incur a minimum sentence of 1 year in prison and a fine of 15 euros
Provocation to suicide
Suicide as such is not prosecuted. It is a personal choice which is not repressed and for which one cannot retain the complicity.
The same does not apply to incitement, propaganda, publicity or provocation to suicide.
The infamous headscarf game, the moral pressures exerted by one or more persons advising a victim to commit suicide in order to devalue him, constitute incitement or provocation to suicide.
However, the perpetrators will only be prosecuted if the minor takes action or attempts to commit suicide. The actions or comments made by the harassers must be followed up.
As in the case of an intentional offense, it will be necessary to demonstrate on the part of the perpetrators the will to see the victim take action.
It is therefore a difficult offense to constitute in terms of proof.
Prosecution will be initiated if the minor commits suicide or attempts to commit suicide.
Articles 223-13 et seq. Of the penal code specify that if the perpetrator of provocation to suicide is 13 to 17 years old, he incurs a fine of 1 years and 7 euros (minimum).
It has become very commonplace to hear words such as "I am going to kill you ... You are going to die ...". But in law, these are death threats and they are taken very seriously by the legislator.
It all depends on the context in which these threats are made and the effect felt by the victim. If he is afraid, feels worry, anguish and feels assaulted… These are not just words, they are threats.
The offense of threat of death is punished in article 222-17 of the penal code. The remarks must be reiterated: There must be at least 2 distinct death threats to consider criminal prosecution.
Thus, the words betraying anger "I am going to kill you, if you do not ..." are not punishable if they are only pronounced once.
It does not matter whether these threats were made orally or in writing, and on any medium whatsoever (SMS, emails, forums, blogs, etc.). It is the repetition that constitutes the offense.
If the author is between 13 and 17 years old, he incurs a year and a half in prison and a 1 euros fine.
Again, these penalties will be increased if the victim is a minor.
Contrary to popular belief, physical contact (beatings, brawls, etc.) is not the only fact that can prevent willful violence.
Running towards someone in a car, on a skateboard, on a motorbike ... throwing your foot at the height of a person's face (the famous kickback) is voluntary violence even if there has been no contact with the person. victim.
It is enough that this violence creates a sufficiently strong psychological or emotional shock on the victim having resulted in an ITT of more than 8 days (absence from school) and that the perpetrator has voluntarily acted to be prosecuted (it must not be a simple clumsiness or a careless mistake).
To characterize the violence, the fragility of the victim and the repetition of the facts could be taken into account.
If this violence was committed near an establishment, that is to say in a perimeter close to a school establishment, this constitutes an aggravating circumstance, as does the age of the victim.
The acts of willful violence are punished in articles 222-7 to 222-16-3 of the penal code. If the perpetrator of violence is between 13 and 17 years old, he incurs a 3 and a half years and 7 euros fine.
Responsibilities that may be incurred
Establishments: the State's responsibility due to its agents
Article L.911-4 of the education code provides:
« In all cases where the responsibility of members of public education is engaged following or on the occasion of a harmful act committed, either by the pupils or the students entrusted to them by reason of their functions, or to the detriment of these pupils or of these students under the same conditions, the responsibility of the State is substituted for that of the aforesaid members of the teaching who can never be questioned before the civil courts by the victim or his representatives.
The action for liability brought by the victim, his parents or his successors in title, brought against the State, thus liable for the damage, is brought before the court of the judicial order of the place where the damage was caused and directed against the competent academic authority.
The limitation period with regard to compensation for the damage provided for in this article is acquired by three years from the day on which the damaging act was committed. »
The responsibility of the State is always engaged because of the faults committed by its agents.
But a distinction must be made.
The supervisor, the teacher, the head of the establishment ... will be personally prosecuted if, although informed, they did nothing to help the minor or to inform the public prosecutor (non-assistance to a person in danger).
However, in civil matters, only the State should be sued to obtain damages.
And not before administrative courts!
As specified in article 911-4 of the education code, which is very little known (which is why we have taken it up above), it is before the courts of the judicial order that the action must be brought.
This same text provides for a limitation period of 3 years. Thus, young adults who have been subjected to bullying, harassment, etc., which have not been followed up, may raise the responsibility of these establishments within 3 years following the facts (or from their majority).
If the author is a minor, the responsibility of his legal representatives will be engaged on the civil level. Not on the penal level, because they are not perpetrators, so they do not incur any penalty in the place of their child!
Civil liability tends to punish their failings and the failings of the holders of parental authority in the education of their children.
If the judge awards damages to the victim, it will be paid by the parents unless otherwise provided.
It is the hypothesis of a child who has personal money (inheritance…). He will then have to pay the victim out of his own money.
Articles 1240 to 1244 of the Civil Code provide that " Any fact whatsoever of man, which causes damage to others, obliges him through whose fault he has arrived to repair it. ».