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Human rights advocates in Morocco are proposing ‘landmark’ reforms of individual freedoms, along with a series of other amendments to the penal code. Among the recommendations is the decriminalization of sex outside of marriage, which civil society has demanded for some time.
Human Rights Watch (HRW) urged the Moroccan parliament to adopt the proposals to enshrine individual freedoms.
The memorandum published by the state-linked National Human Rights Council (CNDH) on 28 October 2019 looked at articles 480, 490 and 491 of the penal code that criminalize same-sex relations, non-marital sexual relations and adultery respectively, which HRW says violate the right to privacy as guaranteed by article 24 of the constitution.
The CNDH was established in 1990 to provide guidance on human rights issues to Moroccan institutions.
According to Ahmed Benchemsi, Middle East and North Africa communications director at HRW, the reforms would contribute to a major revision of the penal code, which has been under debate in parliament for the last two years. “Morocco’s parliament should take the state out of people’s bedrooms and let them pursue their consensual private lives without fear of trials and prison time,” he said in a communiqué released by the organization.
When it comes to sexual relations outside of wedlock, in 2018 alone 7,721 adults were prosecuted for having non-transactional, consensual sex outside of marriage. Of that number, 3,048 were charged with adultery, 170 with same-sex relations and 4,503 were unmarried people having sex.
The battle to decriminalize this private sphere of Moroccan life has also been ongoing for several years. Speaking out on the subject has been taboo and looked down on by the leading Islamist party and the country’s clerics in particular.
However, the debate to decriminalize articles of the penal code that civil society deems problematic has intensified since 2012.
Article 490, which explicitly prohibits premarital sex, is based on Islamic law. Justice Minister Mustapha Ramid has said in the past he would resign if consensual sex outside of marriage was legalized.
Negative perceptions of sex outside of marriage saw a 16-year-old girl advised by a court to marry her rapist to preserve the family honour. The teenager, Amina Filali, committed suicide in 2012 after she was beaten by her husband and disowned by her family.
Twenty-two Moroccan feminist organizations called on the Ministry of Justice to repeal article 490, which carries a one-year prison term if an accused is found guilty, and to authorize premarital sexual relations between adults.
Clerics have opposed the repeals. Benchemsi told Fanack that the Islamists “will certainly push back because they will believe that this is an attack against traditional values”.
“It can be expected that the conservative parts of the society will not be happy about this recommendation. But other sectors of the society will push for [it],” he said.
Analysts also argue that men and women are having consensual non-marital sex more often. A 2007 study by the Health Ministry found that 36 per cent of young Moroccan men and 15 per cent of young women had sex outside of marriage, although the actual number is thought to be higher. However, there is concern stricter laws will end up harming society, risking increased sexual frustration and sexual harassment.
Meanwhile, more young Moroccans are opting to marry later, with the average age of marriage for men being 32.1 and for women 26.4 in urban areas, according to a 2014 study by Morocco’s High Planning Commission. A generation earlier, the average age of marriage was 24 for men and 17 for women. According to sociologist Abdel-Samad Aldealmi, this delay has led to “a lot of premarital sex, non-marital sex, emergence and visibility of homosexuality and lesbianism”.
More recently, the high-profile case of journalist Hajar Raissouni and her fiancé Rifaat al-Amin who were sentenced to one year in jail for premarital sex and having an alleged abortion reinvigorated the public discussion around non-marital consensual sexual relations.
Medical professionals associated with the case also received jail terms. Raissouni denied she had had an abortion, and she and other activists believe the charge was politically motivated due to her critical reporting of the government.
At the time, HRW argued the crimes she was charged with should not have been criminalized in the first place.
Raissouni was pardoned just over two weeks later on 16 October 2019. She told AFP news agency she thought her case had raised a “healthy and useful” debate and called for gay sex and other jailable offences to be decriminalized.
Thousands of Moroccans also signed an online manifesto opposing the criminalization of extramarital sex as well as abortion.
Under article 490, neighbours can file a case against a couple if they suspect they are having non-marital sexual relations, but only if they are caught in the act or admit to it.
It is also illegal for unmarried couples to share a hotel room, although the rule does not apply to foreigners.
Children born out of wedlock tend to be stigmatized as are single mothers, and the state does not register children’s births if the father is not present.
In addition to repealing laws governing premarital sex and abortion, the CNDH also recommended criminalizing rape within marriage, abolishing the death penalty, repealing sections of the penal code that outlaw proselytizing, which the council says has been used to justify the deportation of Christians, as well as decriminalizing eating or drinking in public during fasting hours in Ramadan.
Several days after the CNDH published the memorandum, Prime Minister Saad-Eddine el-Othmani and Human Rights Minister Mustapha Ramid from the Islamist Justice and Development Party, which has 125 seats in parliament’s 395-seat lower chamber, again rejected the recommendations on individual freedoms.
The Party for Progress and Socialism, which has 12 seats, is the only party that supports the recommendations. According to Benchemsi, however, it is still “an open game” as to whether the parliament will approve the proposals.
Other parties will reportedly propose amendments to the draft penal code during parliamentary review as a ‘positive interaction’ with the council’s recommendations.
More than 25 non-governmental organizations have also shown support for the recommendations. Although an overall overhaul of the penal code is under deliberation, the articles relating to individual freedoms, especially consensual and extramarital sex, have garnered special attention.
Even so, changes in policy will not immediately change public attitudes. Societal condemnation of dating and negative public perceptions of sex outside of marriage may remain for some time.