Fragile justice

The F.B. case is one of many that have come before Moroccan courts over the past five years. We obtained a list of these proceedings from the Moroccan Courts website and examined over 25,000 verdicts handed down in cases where one of the charges was “indecent assault of a minor,” whether the victim was male or female. Analysis of this data shows a significant disparity in verdicts and inconsistencies in the application of the law to the letter and the severity of the punishment handed down. For example, some cases require a severe penalty, based on the legal text, but the verdicts did not reflect this.

There have also been some remarkable cases of reduced sentences. For example, the one-year jail term given to a father who had assaulted his mentally handicapped daughter, who was underage. In this case, the waiver offered by the civil claimant was cited as a mitigating factor, which raises questions over whether the priority really is to protect victims of such crimes. There is also a repeated pattern of suspended sentences being given, not to mention sentences in absentia. These pose an additional challenge to justice, since some perpetrators remain fugitives from justice, which undermines the whole principle of deterrence.

Abdulrahim Al-Jamal, who is in charge of communications for the Central Office of the Hassaniya Judges Association, says that Moroccan lawmakers have defined rape as a man having intercourse with a woman without her consent. But they have not defined indecent assault, referring to it only as “any unlawful sexual contact with another human.” So it may not necessarily mean sexual intercourse but simply fondling or touching a sensitive part of the body, which Al-Jamal regards definitely as indecent assault.

Adnan Metafouq – one of the executive committee of the Moroccan Judges Club, where he is in charge of communications and media – argues that the fact that Moroccan legislators talked about indecent assault of a minor, rather that rape of a minor, actually gives greater protection for this group. “Carrying out any sexual act, like touching the victim in a sensitive area, is considered indecent assault of a minor, and this provides some protection for this group of people.” He also notes that Moroccan lawmakers considered rape of a minor as an aggravating factor in the crime of rape.

But what the judges we spoke to consider to be protection of the child’s interest, is seen instead as “discrimination with no legal basis” by Aïcha Kelaa, a lawyer and president of the Moroccan Association for the Rights of Victims Association Marocaine des Droits des Victimes (AMDV).

Reduced sentences

Articles 484 to 488 of the Moroccan Penal Code stipulate prison terms ranging from two to thirty years for indecent assault and rape. However, the data we have obtained show sentences being passed far below the minimum under the law. Sentences are as little as one month in prison, and that is apart from suspended sentences. Fifteen percent of appeal court sentences of more than one year in jail are suspended.

One of the aggravating factors in crimes of indecent assault is where the perpetrator is a close relative. Jail terms of over five years would be expected in such cases. However, the list of appeal court judgments includes 44 cases of indecent assault of a child, in which the perpetrator was a parent. And in nine of these cases the prison sentence was less than five years.

One year in jail was the sentence given to a “father who raped his underage Daughter”, who suffers from “a disability and weakness in her mental faculties”, after the victim waived her civil claim.

Also among these judgements were some suspended prison sentences of two years, given in cases which were classified as “rape or attempted rape of a minor, or a person with a disability, without violence”.

We asked a number of legal experts in Morocco why reduced sentences had been given for crimes of this type. Their response was that judges have the freedom to rule as they “see fit,” both to consider “mitigating circumstances” and to “fit the punishment to the individual.”

This was confirmed by Moroccan Judges Club spokesman Adnan Metafouq, who said that the law gives judges this freedom, based on the principle applied in all countries: namely, that each accused person receives their own punishment, based on the circumstances and conditions of their particular case. It is these circumstances, which are not applicable to another individual, which therefore allow the judge to apply a particular punishment to each accused.

“This is in addition to the mitigating circumstances set out in Article 146 and other parts of the Penal Code,” he adds. “So, there are circumstances related to cases, which allow the judge to reduce the maximum penalty and also to issue a suspended sentence”.

Abdel Rahim Al-Jamal, of the Hassaniya Association of Judges, explains that the judge, in doing so, takes a number of factors into account: “The character and record of the criminal. Is he, for example, still studying? Is he head of a family? And his social circumstances, and how serious his actions were.” Al-Jamal stresses that these mitigating circumstances have nothing to do with how rich or poor the accused is, but that the court does take into account social circumstances, as well as how serious the crime was and how much harm was caused to the victim.

In contrast, Omasst Mohamed Azakouk, a lawyer acting in the Court of Cassation, argues that it is necessary to “look again at how trials are conduced, and to apply Article 82 to protect victims.” He explains that many victims are from villages and remote mountainous areas and do not have the financial means to hire a lawyer. “For example, we find that if the accused in a criminal case doesn’t want to appoint a lawyer to defend him, the court will itself appoint one for him. So, appointing a lawyer is mandatory in criminal cases. But for the victim it isn’t mandatory. And the court cannot act on the victim’s behalf.”

The list of court judgements we obtained also include suspended sentences; rulings that the juvenile be handed over to their guardian, if the perpetrator is also a minor; and sentences that are merely payment of bail.

In the primary courts, there were 176 rulings against juveniles in which the judge decided to “hand them over to their guardians.” The only exception was a juvenile offender who was placed in a child protection centre. The appeal courts also issued more than 1,100 acquittals.

Likewise, judgments passed in absentia against individuals who remain at large, amount to a failure to implement justice. There were 534 such in-absentia judgments passed by the appeal courts and 271 others by courts of first instance.

The F.A. case is one such case, in which the accused was given an in-absentia prison sentence and has not so far been arrested – up to the time this investigation is published - though the facts of the case include some “aggravating” factors.

F.A. was only 14 when she was raped and sexually exploited, resulting in her becoming pregnant and giving birth. The court initially sentenced the perpetrator to three years in prison and a fine of 35,000 dirhams (about US$3,500). The sentence was upheld on appeal. But despite this, the perpetrator has not served on single day in prison.

F.A. relates the details of the case, which goes back to 2014: “He (M.Z.) was from our area but I’d never spoken to him. One day, when I was tending the animals, he somehow managed to find me and said he wanted to have a relationship with me. He said he felt sorry for me and my situation and that he’d always support me. I told him I wanted to move far away from the area, so he offered me help on condition I did what he said.”

The victim says that the 22-year-old M. Z. sexually exploited her repeatedly and then went away, saying he had joined the army. She adds: “Four months later, I went to the doctor, and he told me I was 21 weeks pregnant. We took a medical certificate to the police and an investigation was begun and he was brought in. When they asked him if he was the father of the child, he admitted he’d had a relationship with me. But he told the police the child might be someone else’s”.

M. Z. managed to outwit the police by inventing a “fake reconciliation”. His father approached the men of the tribe, and they then went to the victim’s father’s house with a sacrificial animal and once there they performed a ritual which they called a “casting out shame ritual.” They asked for a reconciliation and the perpetrator’s father pledged in writing that his son would marry the underage girl with a dowry of five thousand dirhams (about US $500), and a deferred dowry of 30 thousand dirhams (about US $3,000).

On this basis, that the victim’s father gave up the case and the perpetrator was released. During the first court session, the judge asked the victim’s family about what they had agreed to amicably. They told him that the accused had come to propose to her and had promised to marry her. When the judge asked again whether the victim’s family wanted to go on with the case or drop it, they asked to drop it. He was therefore released, but the very next day he fled.

The family then brought a fresh case, but the perpetrator was sentenced in absentia. Up to the date this report is published, he has not been found.

F.A. lives today with her family and her young child, who is now two years and a few months old (as of the date of publication of this investigation). And she waits and hopes that they will tell her “as soon as possible” that her rapist has been arrested.

Lawyer and AMVD president Aïcha Kelaa points out that there are still some judges in Moroccan courts who, in such cases, ask whether the victim’s family and the perpetrator have agreed on any concession. This is despite the ongoing “rights- based campaign” to abolish the legal article that requires the victim of rape to be married to her rapist.

She attributes this to what she calls the “social and religious background… Even the judge, who is supposed to encourage the reporting of crimes, is a product of his culture and environment.”

Another factor that contributes to reduced punishments is the differentiation made between violent and non-violent rape. This is based on the notion that abuse with violence is done against the wishes of the victim, while if there is no violence this is “assumed” to imply the victim’s consent, whether they are male or female.

Marriage between a minor and her rapist

The National Council for Human Rights (CNDH 2 ), brought out a report in October 2022, called: “Lack of justice over violence dehumanises women.” It shows that despite parliament revoking the second paragraph of Article 475 of the Penal Code – which was used as a means to gain exemption from punishment if the rapist marries the victim – there is still the option for cases of sexual abuse of girls to be dropped if the accused offers a marriage contract to the victim, who then drops the case.

Abdulrahim Al-Jamal, of the Central Office of the Hassaniya Judges Association, observes that a reconciliation can take place outside court. But he highlights how complicated such cases can be when “you can’t be sure that the victim is really happy or willing to marry her rapist.”

Civil rights organisations are demanding a “comprehensive approach” aimed at protecting Moroccan children.

Lawyer and AMVD president Aïcha Kelaa also calls for a “safeguarding code for children at all levels”, to protect them not only from sexual violence but from any source of harm.

She points out that rates of child sexual assault are much higher than the published figures, since most victims and their families do not report these crimes for fear of “social stigma”.

Heavier sentences

The list of court judgments we obtained includes five life sentences for child rape. In these cases the perpetrator did not only rape children, male or female, but committed “premeditated murder.”

These cases are not just isolated incidents. They present a litmus test of how far the justice system is protecting most vulnerable groups in society.

This investigation was carried out with the support of ARIJ