Under the Penal Code, Morocco is one of the strictest in the region

Morocco is one of fifteen countries where the legal age of sexual consent is between 18 and 19 years old, while the prohibition of sexual intercourse outside of marriage is punishable by the Penal Code, in accordance with article 490. The provisions cover all sexual rights by The country comparison is the subject of a study, recently published by the international NGO Sexual Data Base, which also looks at reproductive rights, the state of prostitution and sex trafficking or homosexual relationships.

From this study, whose data relating to Morocco came to Yabiladi through the contributors to this work, it can be seen that if the country is essentially based on positive law – borrowing, however, from the provisions of religion – its arsenal at the Penal Code level remains most stringent in terms of extra -marital relations in the MENA region and countries with Muslim communities.

The Moroccan Penal Code is one of the most strictly written laws in the region

In fact, this comparison reveals that 18 of the 24 countries that recognize the Muslim religion within them have not adopted laws equivalent to article 490 of the Moroccan Penal Code. Among these States, we also find Algeria, Tunisia, Egypt, Bangladesh, Burkina Faso, Azerbaijan, Kazakhstan, Kosovo, Jordan, Turkey, or even Albania, among others.

But in others, including Saudi Arabia, sexual consent and subsequent relationships remain conditional on marriage. In neighboring countries, only Mauritania has a text similar to Morocco, in article 307 of its Penal Code, which has nevertheless been deleted, according to data from the Sexual Data Base.

In the Gulf countries except five (Saudi Arabia, United Arab Emirates, Qatar, Bahrain, Kuwait), “there is a similar article but with flexible application”, explains the same source.

“Even if there is an article similar to Article 490, privacy is institutionalized. In addition, the violation of domicile is strict and framed: it can only be under certain conditions, for example in the case of prostitution or trafficking in persons .Finally, the marriage certificate is not required in tourist establishments, even by Muslims.

A lawyer specializing in criminal and family law, Khadija Rougani explained to Yabiladi that “despite the religious aspect where the Moroccan provisions relating to individual liberties may be relevant in general- an, it should be noted that a significant number of them are contrary to the principles of the Muslim religion.

The Maliki rite does not make an analogy to progressivism (ijtihad).

For example, Khadija Rougani points out that article 490 of the Penal Code generates the largest number of applications for retrograde, even beyond the conditions provided by Muslim rules for establishing a sexual relationship. outside of marriage.

“From a purely religious standpoint, many conditions must be met in order to establish these links without harming people; Nowadays, it is impossible to unite them all, because, for example, it is difficult to arrest unmarried couples in flagrante delicto in places that are accessible to the public, while religion forbids bold places, especially in house or hotel room, ”he explained. .

“This is an image of the majority that shows that the Penal Code can be stricter than some religious provisions where analogical interpretations (ijtihad) made by people are interwoven and its applicability is even greater.”

Khadija Rougani, lawyer at Casablanca Bar

“In addition, article 490 speaks of sexual relations as such, while in the name of this text, women can be arrested by the simple fact of confronting a man in a closed place or sometimes even in common areas, in specific areas. hours of the day “, lined Me Rougani to provoke different random applications arising even from the same law.

“We pride ourselves on the openness of our Malikite rite, while it is sufficiently motivated or in the simple knowledge of certain laws in other countries whose provisions are considered on a religious basis, in various the -ang, to realize that Malikismo is not as effective lock as it is presented to us against rigorism ”, another lawyer explained to us.

Khadija Rougani stressed that in terms of sexual rights, homosexuality remains restricted under article 489, unlike other countries with Muslim communities. Despite current practices, written texts do not penalize this form of relationship. This is the case in Iraq, Egypt, Jordan, Turkey, Tajikistan, Chad, Bangladesh, Kuwait, Malaysia, Turkmenistan and Brunei for women and Bahrain for men.

Laws and measures that drive the evolution of mentalities

In Morocco, if other penal provisions punish “indecent assault”, it does not clearly explain the meaning of this term. “This is the cause of unreasonable cases, such as Inezgane that the appearance of young women is simply due to wearing shorts or mini-skirts, because someone who is hurt by their clothes is wearing -and a complaint “, Me Rougani recalled.

For the lawyer, “the law should be an educational tool, it influences the minds, whatever its essence and should force society to live in accordance with a progressivism that governs the life of society”. And it’s one to emphasize that “in any case, the most severe restrictions on sexual rights will only result in a more serious violation”. For example, “the statistical associations of voluntary termination of pregnancy conducted daily in Morocco exceed countries whose laws are more flexible on this issue,” Khadija Rougani said.

The lawyer explains in other words: “If a law allows everyone to exercise rights within a legal framework, it has a huge impact on social peace. On the contrary, a regressive one law will only emphasize the differences and widen the differences between the spirit of the laws and social realitys.This mechanism triggers a bad cycle of prevention that often comes with other related issues, especially already the rights of women and the provisions for the protection of victims in the event of violations of their rights, due to the lack of anticipatory measures that recognize the many. facts. ”

In this regard, Khadija Rougani wants to emphasize the historical dimension of this dichotomy: “The Penal Code dates back to 1962 and let us not forget that it is borrowed from provisions dated from the Protectorate, in particular the priorities at this time- none in Morocco today.

The lawyer thus pleaded that “the context of the 20th century is not that of today, where we are called to reorganize priorities, especially through the decolonization of our laws, by harmonizing their spirit in a process of unity in such a way of doing. therefore, they also raise the patriarchal weight of women as well as men for that matter “.

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