Morocco’s Legal System and its influences on Women’s Rights: A Case Study on Gender-based Domestic Violence

December 1, 2020

by Nouhaila Bouhout, Central European University

Morocco’s legal system struggles to maintain a balance between embracing Western democratic values and upholding historically entrenched Islamic beliefs and cultures. This contradictory framework tends to serve as an obstacle in implementing policies defining gender relations, meant to protect women’s rights and interests. In this regard, gender inequality in Morocco is essentially a derivative of the overpowering patriarchal society strengthened by a gendered legal system whereby laws are not fit for purpose. This is primarily due to the fact that women’s political participation remains largely insufficient. While there have been various progressive episodes of women’s involvement in political affairs, the design and adoption of major policy and decision-making processes are primarily influenced by divergent interests stemming from inherent gender inequality norms.

Despite the Moroccan government’s efforts in implementing equality policies, women’s rights remain unprotected, to a higher extent, by the inadequate judicial system and public administration authorities. Stemming from cultures and traditions of patriarchy, women are constantly oppressed when seeking to address their rights and specifically, in accessing justice for domestic violence. Further, women’s political consciousness and the likelihood that they will seek to denounce such violence highly depends on the degree of the (gendered) system of accepting their resistance.[1] Nevertheless, nongovernmental organizations (NGOs) in Morocco, play a major role in fighting for the implementation of women’s rights by filling the gaps in the legal system. In short, this paper will discuss the issue of gender-based domestic violence, followed by an overview of the legislative framework and an analysis of legal violence as a result of Morocco’s failure to translate its laws and policies into practice.

Prevalence of Gender-based Domestic Violence in Morocco

Gender-based domestic violence in Morocco takes place in many forms and is caused by various factors which include, but are not limited to: alcohol and drugs, a robust patriarchal society, and economic inequalities.[2] Domestic violence is generally viewed as a private matter whether it is between a married couple or parents and children and is justified based on the (misinterpretations of) the Qu’ran.[3] The patriarchy, to a lesser extent, generates this violence since women are regularly seen as men’s property. More importantly, Morocco’s penal code does not consider marital rape or psychological violence as a crime, and rape is not considered a crime against a person but rather, morality, as described in Articles 486/488.[4]

Accordingly, the High Commissioner for Planning of Morocco has conducted a national survey in 2009 reporting that 55% (3.7 million) of married women experienced some form of domestic violence by their husbands.[5] Women aged 18-64 of whom are 13.5% of the population have also endured domestic violence by a family member.[6] In urban areas, it is estimated that 56.1% of women are victims of domestic violence compared to 53.3% in the rural areas [7] (note the numbers are higher in urban areas since women are most likely to report cases of domestic violence depending on the degree of societal constraints).

Morocco’s Legal Framework regarding Gender Justice

This section will analyze Morocco’s legal framework by providing an overview of the international human rights standards and national laws in regards to gender equality in order to determine their efficacy in implementing and protecting women’s rights.

Implementing International Human Rights Standards

The changes made to the constitution in 2011 were a pivotal development in Morocco’s legal framework as its adherence to international law conventions on gender equality preceded domestic legislation. Considering Morocco is a monist state, international conventions and standards are embodied in the national legislation. However, inherent gender blindness, prevalent in the legal system, continuously undermines Morocco’s ability to effectively abide by international instruments. For instance, Morocco is subject to the International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of Forms of Discrimination Against Women (CEDAW), and Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT).[8] Nevertheless, its Islamic practices which are translated into Sharia law, are still not in accordance with international standards. As a result, effective policy implementation of gender equality is extremely difficult, if not impossible to enforce.[9]

Domestic Laws & Policies

In 2004, Morocco reformed the Family Code, aiming to promote, protect, and enforce women’s basic human rights.[10] Major changes include women’s right of child custody and the modification of the minimum legal marriage age from fifteen to eighteen. Further gender equality policies are evident in Article 6, 19, 30, 35, & 92 of the constitution ranging from political, social, and civil rights to opportunities.[11]

In 2011, new equality policies were adopted: the Act on the Authority for Gender Equality, the Fight Against All Forms of Discrimination, and the most recent one in 2018, law 103-13, the, “Elimination of Violence Against Women”.[12] This law defines violence against women as, “any act based on gender discrimination that entails physical, psychological, sexual, or economic harm to a woman.”[13] In addition to raising awareness on the issue, the law has increased penalties for violence committed within families, criminalizes sexual harassment in public spaces, cyber harassment, and forced marriages.[14]

A Gender Perspective

Due to Islamic traditions and beliefs, the cornerstones of Morocco’s society, controversies within the legal system are permeating rural and urban Morocco. Despite Morocco being a signatory to international human rights conventions, in recognition of gender-equality laws in its constitution, the law does not effectively protect cases against domestic violence. Polygamy and child marriage, for instance, remains rampant. Marriage is still conducted through religious customs in most rural areas whereby courts are not necessarily required for a legal authorization of marriage. According to theories of legal reasoning and Columbus Langdell, rules are holdings of established precedents, rooted in principles.[15] Conversely, this notion goes against legal realism and sociological jurisprudence whereby the "purposes of the law is the goal of doing justice rather than following the letter of the law".[16] Similarly, legal reasoning in Morocco’s judicial system is based on inherent traditional beliefs and practices of Islam. This is particularly an issue since conventional societal traditions associate women with the domestic sphere. In such cases, they are most likely to get married at an early age and experience domestic violence married as children rather than married as adults.[17]

Furthermore, the “Elimination of Violence Against Women” law, fails to criminalize marital rape, lacks an explicit definition of domestic violence, neglects measures to be taken for survivors of sexual or domestic violence, and excludes the issue of accountability of public authorities to implement the law. Evidently, these gaps within Morocco’s legal framework persistently fail in protecting women from domestic violence. Evidently, when national laws and policies are not enforced, due to disparities in the Islamic patriarchy, international standards cannot be met and abided by.

Legal Violence

The right of access to justice is one of the most fundamental laws of international human rights law.[18] However, in Morocco, women suffer from practicing this right as a result of the gaps in the legal system, the patriarchy, and more importantly, because domestic violence is perceived as a private, familial issue. Consequently, the judicial system fails to proportionately address cases of domestic violence due to biased assumptions and deeply rooted, negative gender stereotypes. Women, therefore, being the most affected, tend to mistrust the judicial system, the police, and other public authorities.[19] Additionally, women are most likely not to report cases of domestic violence in fear of being shamed by their families or society (divorce or taking a family member to court is not tolerated or accepted in some conservative communities).[20]

Given these circumstances, domestic violence is usually resolved within the family. Women’s ability to access justice is also further exacerbated by a lack of legal and political consciousness. However, even when women do take their cases to court, female testimonies do not weigh as high as men's’.[21] Accordingly, out of the 55% of women victims of domestic violence, only 3% reported their cases and went to court.[22] In rural areas, where women represent 49.2% of the population, legal access and justice are more difficult to achieve, highly due to religious, conventional communities, and the unequal distribution of counseling services, municipalities, and courts.[23] In many of these poor regions, the police, prosecutors or courts, refuse to record women’s statements, make an investigation, or arrest the suspects (even when ordered to).[24] Additionally, there is a lack of communication and consensus between the courts and public authorities whereby the most usual advice or solution for women is returning to the abusive home.

Evidently, women are negatively impacted by the weaknesses of the judicial system. In domestic violence cases, judges also request witnesses as evidence, an impractical provision, since violence occurs within private homes. Thus, just as legal realists would argue, judges reach their decisions through social and cultural forces whereby the assessment of the case is drastically affected.[25] In this context, women are also unable to file for a restraining order rendering domestic violence inevitable.

Policy Framework and the Role of Nongovernmental Organizations

The critical role of NGOs in protecting women’s rights and filling the gap of the ineffective judicial system has been strengthened by the development of Moroccan feminist movements. The feminist movement, characterized by the Family Code, has evolved and progressed since Morocco’s independence as women increasingly establish associations, join political parties, and struggle to not only implement but design gender and equality policies. However, while the Moroccan feminist movement serves as a role model for other Arab feminist movements, it is still weakened by the raging patriarchy. Nevertheless, the feminist movements have managed to, in a lesser extent, confront the patriarchy by targetting their legal rights. To publicly make their voices heard, women wrote journal articles, engaged in political activism, and human rights advocacy to mainly campaign for women’s education, enforce legal reforms, and women’s access to participate in political affairs. In 2011, for instance, during the major constitutional reforms, women created the “Spring of Feminist Democracy and Equality”, an effort to join a network of human rights and women’s rights organizations in order to establish a collective union of women’s demands for the Advisory Committee to review and implement.

Since 2012, there have been two government plans working to promote gender equality in which most initiatives achieved were related to victims of gender-based domestic violence.26 The establishment of the “National Observatory for Violence against Women” seeks to implement gender equality laws by establishing monitoring institutions—different mechanisms of collecting statistical data and cases.27 As subjects of global administration, NGOs also act as regulatory agents at the domestic level.28 In many instances, NGOs have succeeded in amending certain laws discriminating against women and encouraging more women to participate in spaces traditionally believed to belong to men.29 In addition to advocacy campaigns, raising awareness, counseling centers, providing shelters for survivors of domestic violence, NGOs effectively implement and amend gender-equality policies.

Conclusion

Morocco’s domestic laws are not effectively balancing the rights and interests of its citizens equally and neutrally. The patriarchal social structures translate its beliefs and cultures into practice leading to gaps in the legal system despite the incorporation of international human rights law conventions. As a result, gender-based domestic violence prevails, negatively impacting women’s physical and psychological health. More importantly, domestic violence is eschewed by the very laws within the family code and penal code. In reality, such equality policies are not practiced (refer to appendix A). Women face and endure serious obstacles when seeking to access justice to domestic violence. Conclusively, while the judicial system continues to marginalize women due to gender stereotypes rooted in a society constructed by patriarchal norms, women continue to suffer from restrictive social norms, stigma, and fear, undermining their ability to achieve gender justice.

Appendix A: Court Cases concerning Gender-based Violence in Morocco

Appendix A will include various court cases investigated and published in a report, Obstacles to Women’s and Girl’s Access to Justice for Gender-based Violence in Morocco, by the International Court of Justices. Cases are from the Court of Appeal, Court of First Instance, & Court of Cassation in Morocco to demonstrate the gaps in the legislative framework and their impact on women’s rights, specifically their right to access justice. The cases will highlight patriarchal norms entrenched in society that lead judges to base their legal reasoning on cultural beliefs resulting in extremely biased decisions. Examples will be provided from cases of marital rape and other forms of gender-based domestic violence.

Refer to the following source to access the cases listed below:

International Commission of Jurists (ICJ). (2019). Obstacles to Women’s and Girls’ Access to Justice for Gender-based Violence in Morocco. International Commission of Jurists, 4–59. Retrieved from https://www.icj.org/wp-content/uploads/2019/06/Morocco-Obstacles-GBV-Pub...

  1. Cases highlighting Patriarchal Norms and Judges’ biased Legal Reasoning

Court of Appeal in Tangier - File No. 315-08, 19 June 2008

Court of First Instance in Bouarfa – File No. 14-12, 19 July 2012

Court of First Instance in Larache – File No. 56-04, 27 December 2004

  1. Cases of Marital Rape

Marrakech Court of Appeal - First Instance Court of Kal’at Al-Sraghna Misdemeanours file: 09/358, 09 September 2009

  1. Cases indicating Obstacles Women Face in Accessing Legal Aid & Legal Justice for Gender-Based Violence

Kenitra Court of First Instance - Case No. 1721/1618/2012, 29 October 2013

Souq Al-Arbaa Court of First Instance - Case No. 13-484, 25 November 2013

Appendix B: Testimonies from Moroccan Domestic Violence Survivors

Refer to the following source to read more about the experiences of victims and survivors of domestic violence in Morocco:

Human Rights Watch. “Morocco: Tepid Response on Domestic Violence Strengthen Laws; Provide Protection, Justice, Services.” Human Rights Watch, February 15, 2016. https://www.hrw.org/news/2016/02/15/morocco-tepid-response-domestic-viol...

Endnotes

[1] Aicha Afifi and Rajae Msefer. 1994. "Women in Morocco: Gender Issues and Politics." In Women and Politics Worldwide (Yale University Press), 466.

[2] Naciri, Hayat. 2018. “Gender-Based Violence in Morocco: Domestic Violence as a Case in Point.” Culture & Society9, no. 1: 51–66. https://doi.org/10.7220/2335-8777.9.1.3.

[3] See verse 4:34 in The Qu’ran Surah An-Nisa.

[4] Ruchti, Jefri J, trans. 2011. “Morocco's Constitution of 2011.” Constitute, 2–50.

[5] Royaume du Maroc Haut-Commissaire Au Plan 2009. “Enquête Nationale Sur La Prévalence De La Violence à l’Égard Des Femmes Au Maroc 2009.” Haut-Commissaire Au Plan.

[6] Ibid.

[7] Moroccan Haut Commissaire au Plan. 2011. “‘Principaux Résultats De l’Enquête Nationale Sur La Prévalence De La Violence à l'Égard Des Femmes (Version Française).” Moroccan Haut Commissaire Au Plan.

[8] UNHCR. “UN Treaty Database .” United Nations Human Rights Office of the High Commissioner . Accessed September 25, 2020. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?....

[9] UNDP. 2011. “Gender Equality and Women’s Empowerment in Public Administration - Morocco Case Study .” United Nations Development Programme, 2–61.

[10] Morocco. House of Representatives and the Chamber of Counselors. Human Rights Education Associates (HREA), THE MOROCCAN FAMILY CODE (MOUDAWANA), Signed by Driss Jettou. Rabat: Official Gazette, 2004.

[11] Ruchti, Jefri J, trans. 2011. “Morocco's Constitution of 2011.” Constitute , 2–50.

[12] Human Rights Watch. 2018.“Morocco: New Violence Against Women Law Progress, but Some Gaps; Further Reform Needed.” Human Rights Watch.

[13] Ibid.

[14] Ibid.

[15] Ellsworth, Phoebe C. 2005. ‘Legal Reasoning.’ In K. J. Holyoak and R. G. Morrison Jr. (eds), The Cambridge Handbook of Thinking and Reasoning, New York: Cambridge Univ. Press, pg. 688.

[16] Ibid, pg 691.

[17] Kidman, Rachel. 2016. “Child Marriage and Intimate Partner Violence: a Comparative Study of 34 Countries.” International Journal of Epidemiology 42, no. 2: 662–75. https://doi.org/10.1093/ije/dyw225.

[18] International Covenant on Civil and Political Rights, Article 2.

[19] UNDP. 2012. “Morocco Gender Justice Assessment of Laws Affecting Gender Equality and Protection against Gender-Based Violence.” Morocco Gender Justice & The Law - United Nations Development Programme.

[20] Euromed Droits. 2016. “Maroc : État Des Lieux Sur Les Violences à l’Égard Des Femmes.” Euromed Droits.

[21] Ibid.

[22] Royaume du Maroc Haut-Commissaire Au Plan. 2009. “Enquête Nationale Sur La Prévalence De La Violence à l’Égard Des Femmes Au Maroc 2009.” Haut-Commissaire Au Plan.

[23] Guessous, Hamza. 2019. “Rural Women in Morocco More Vulnerable to School Dropout, Illiteracy.” Morocco World News.

[24] Human Rights Watch. 2016. “Morocco: Tepid Response on Domestic Violence Strengthen Laws; Provide Protection, Justice, Services.” Human Rights Watch.

[25] Ellsworth, Phoebe C. 2005. ‘Legal Reasoning.’ pg. 691.

[26] “Government Plan for Equality 2012-2016.” Ministry of Solidarity, Women, Family, and Social Development, 2012.

[27] UNDP. 2012. “Morocco Gender Justice Assessment of Laws Affecting Gender Equality and Protection against Gender-Based Violence.” Morocco Gender Justice & The Law - United Nations Development Programme.

[28] Kingsbury, B., Krisch, N., & Stewart, R. B. 2005. ‘The emergence of global administrative law’, 68 (3/4) Law and contemporary problems pg. 23.

[29] Ennaji, Moha, and Fatima Sadiqi. 2012. “Women’s Activism and the New Family Code Reforms in Morocco.” The IUP Journal of History and Culture 6.

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Ellsworth, Phoebe C. 2005. ‘Legal Reasoning.’ In K. J. Holyoak and R. G. Morrison Jr. (eds), The Cambridge Handbook of Thinking and Reasoning, New York: Cambridge Univ. Press, 685- 704

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Euromed Droits. 2016.  “Maroc : État Des Lieux Sur Les Violences à l’Égard Des Femmes.” Euromed Droit. https://www.euromedrights.org/wp-content/uploads/2016/12/EMHRN-Factsheet....

 “Government Plan for Equality 2012-2016.” Ministry of Solidarity, Women, Family, and Social Development, 2012. http://www.social.gov.ma/en/content/government-plan-equality-respect-year-2012-2016

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 Human Rights Watch. 2018. “Morocco: New Violence Against Women Law Progress, but Some Gaps; Further Reform Needed.” Human Rights Watch. https://www.hrw.org/news/2018/02/26/morocco-new-violence-against-women-law.

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 Moroccan Haut Commissaire au Plan 2011. “‘Principaux Résultats De l’Enquête Nationale Sur La Prévalence De La Violence à l'Égard Des Femmes (Version Française).” Moroccan Haut Commissaire Au Plan. https://www.hcp.ma/downloads/Violence-a-l-egard-des-femmes_t13077.html.

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