Originally published on The Advocates Post

In Morocco, a 15 year old girl experienced constant harassment and threats from a 35 year old man in her town.  He waited for her each day outside of her school and on several occasions told her, “I will force you to marry me.”  One day, he abducted and raped her at knifepoint.  The victim made a complaint to the gendarmes, who arrested the man.  In his statement to the police, the rapist admitted his crime, declaring that he did it “because it was the only way I would be able to marry her.”  In order to avoid scandal, the victim dropped out of school and married him.  “I am raped now every day,” she told members of the local association that works with women survivors of domestic violence.

This tragic story is one of many included in a joint submission The Advocates for Human Rights and our Moroccan partner Mobilising for Rights Associates (MRA) made recently to the United Nations’ Committee on the Rights of the Child.  The submission  draws attention to the serious human rights violations resulting from the application of Article 475 of the Moroccan Penal Code, which  provides that whoever “abducts or deceives” a minor, without using violence, threat or fraud, can escape prosecution and imprisonment if (i) the abductor marries the victim, and (ii) those persons who have a right to request annulment of the marriage do not file a complaint.^[1]

Organizations and news reports from Morocco indicate that Article 475 has been applied in cases of sexual abuse of minors in order to preserve the “honor” of the victim and her family.  Notably, this issue has received widespread coverage following the 2012 suicide of Amina Filali, a sixteen year-old girl who killed herself after being forced to marry a man – ten years older than her – who had raped her.^[2] Additional news reports confirm that the use of Article 475 continues.^[3]  Further, associations working at the local level in Morocco report that girls married under Article 475 continue to suffer rape and domestic violence after the marriage.

Information from our Moroccan partners illustrates the extent of the problems with the application of Article 475. One local association that works with women reported that, of 11 cases involving rape of a minor that they handled in 2013, Article 475 was raised in 6 cases; the age of the victims ranged from 14-17, while the age of the rapists ranged from 23-28.^[4]  In one case, a 14 year old girl was raped by her 28 year old cousin, and she became pregnant as a result.  She sought help from the association to file a criminal complaint, and there were several court hearings.  DNA testing established that the accused was the rapist.  Under Article 475, the two families agreed on a temporary marriage between the rapist and the victim to avoid shame, with a predetermined divorce date after one month of marriage.^[5]

Associations working at the local level in Morocco report that the young victims experience tremendous pressure to abandon criminal prosecution and agree to the application of Article 475  from law enforcement, justice system personnel, as well as the families of the perpetrators. Even their own families pressure them to agree to marriage under Article 475 in order to avoid shame. Because all sexual relations outside of marriage are illegal under the Moroccan Penal Code,^[6] victims also fear prosecution and imprisonment under Penal Code Article 490.^[7] In fact, one Moroccan association reported several cases of rape victims who filed complaints to initiate criminal prosecution but were prosecuted themselves under Article 490.^[8]

In one instance, a 15 year old girl was raped by a 25 year old man.  She became pregnant as a result of the rape, which is considered proof of illicit sexual relations.  She did not want to file a criminal complaint because she feared prosecution under Article 490, so she fled her home and sought shelter through a local Moroccan association.  The rapist’s family made threats against the victim’s mother, however, and she was pressured to not file a criminal complaint and to marry the rapist under Article 475 instead.^[9]

Article 475 must be understood in the context of early marriage in Morocco.  While the legal age of marriage for both men and women is now 18 in Morocco,^[10]the Family Code allows the marriage of minors when “justified” and after substantial control by the Family Affairs judge.^[11]Both the number of petitions for authorization to marry minors and the approval rate are high and increasing.  In 2007, 10.03% of marriages were of minors, and 86.8% of the 33,596 petitions were authorized.^[12]  In 2011, the rate had risen to 11.99% of all marriages and 89.56% of 46,927 petitions for authorization to marry a minor were granted.  33.58% of petitions in 2011 were for minors ages 14-16^[13].  The overwhelming majority of the minor spouses, 99.31%, were girls.^[14] The Family Code provides no threshold minimum age below which authorization to marry may never be granted.  Local NGOs report marriages of girls as young as thirteen, fourteen and fifteen.^[15]

In practice, judges often issue authorizations based on their own cursory visual examination of the minor girl’s physical appearance and determination that she is capable of assuming “marital responsibilities,” rather than resorting to the required expertise.^[16]  Reasons advanced by judges for authorizing underage marriage include saving family honor, avoiding scandal, protecting the girl’s chastity and preventing her from debauchery.  Some even cite marriage as a solution to poverty.  At times judges do not even substantiate their decisions in writing.  Corruption among public actors and the ease by which medical certificates attesting to the minor girl’s “maturity” can be obtained are also factors allowing circumvention of the law.^[17]

In spite of the reality of early and forced marriage for young Moroccan girls, the Moroccan Government made statements in recent United Nations submissions that Article 475 does not apply to, and has not been applied in, cases of sexual abuse of minors.  For example, in response to the most recent concluding observations of the Committee Against Torture, the Moroccan Government stated that Article 475 does not apply in cases of sexual abuse and that there is no statutory text in Morocco that exempts the “perpetrator of child rape from punishment when he makes the child concerned his wife, because anyone who commits rape is punished in all instances, even when he marries the victim of rape.”^[19]  The Moroccan Government further stated that Article 475 “is not applicable to rape but rather to the crime of the abduction of a minor who leaves the parental home to be with someone and agrees to marry him.”^[20]

In other words, in the Moroccan Government’s view and in contrast to the many reports originating from Morocco, Article 475 is intended to address situations involving marriage without the consent of the family where the prosecution for abduction of a minor can be dropped if the victim’s family withdraws the complaint to “maintain good family relations and to protect the make-up of the family if arresting the husband could lead his minor wife to lose any chance of a normal life.”^[21]

On January 22, 2014, Morocco’s Parliament voted to abolish paragraph 2 of Art. 475.  While this is a positive step, and certainly a victory to be celebrated, the bill that was approved unanimously this week only abrogates the exoneration through marriage provision.   It does not change the rest of Art. 475 which provides that a man convicted of statutory rape in Morocco is still only subject to a few years in prison and a small fine.   It does nothing to impact the larger problems faced by minor girls who experience sexual abuse or early marriage in Morocco.

The Moroccan government must go further to protect the rights of women and girls.   Given the factual situation on the ground in Morocco and the clear violations of Morocco’s obligations under the Convention on the Rights of the Child, the Moroccan government must:

• Amend Morocco’s Penal Code and Penal Procedure Code to facilitate procedures for bringing sexual abuse and rape of minors cases, including eliminating discriminatory legal provisions that require proof of actual physical injury and place heavy burdens of proof solely on the victim.

• Amend Morocco’s Penal Code to abolish criminal prosecutions under Article 490 for “illicit sexual relations.”

• Develop and implement a plan for educating the judiciary and public that criminal proceedings against rapists will not be terminated if they marry their victims and that Article 475 is not to be applied in cases of sexual abuse and rape of minors.

• Penalize all acts to encourage, pressure, or threaten minors to marry, whether by public or private actors.

• Amend Morocco’s Family Code to establish clear and objective criteria under which judicial authorizations for the marriage of minors may be granted in only exceptional cases, and in all events establish a threshold minimum age under which authorization to marry may never be granted.

Related post:  Amina Filali and Violence Against Women in Morocco