Debate on the legal definition of ‘rape’ in Morocco
in MOROCCO, POLITICS & SOCIETY, TOP NEWS, WOMENS RIGHTS/HUMAN RIGHTS
By: Marwa Belghazi and Nada Rifki
January 29, 2013
The case of Malika Slimani against Hassan Arif is just a case among many others in Morocco. But it is very important because it invites us to debate about the judicial (or legal) definition of rape in our country and its conception in our society.
The plaintiff doesn’t correspond to the stereotypes that we have of rape in Morocco. She is not a minor with an angelic face who got raped by her teacher or any other adult. It is not about some “stolen childhood” or “broken innocence”. It is also not about those mothers or grand-mothers we learn with fright about their rape stories from family members or from neighbors. Many images that refer us to this fragile and candid femininity that provoke unconditional rage and stir among the public opinion.
However in this case, the plaintiff is a young woman, single, financially independent and this is where the shoe pinches. Based on many assumptions and ideas that populate the moroccan collective thought, they deny her right to speak her version of the story is rejected.
“She probably was not a virgin, so she didn’t get raped”, “She was involved in a romantic relationship with him so he didn’t rape her”, “She is an adult and surely have consented. We don’t rape unmarried women”, “If there is no evidence of violence, then there was no rape”, etc…
The first assumption relates to the possibility of rape to pre-condition of virginity. The public reaching of this virginity compromises the honor, the rank, even the life of the subject. Indeed, the existence of the hymen and keeping it is a condition of marriage in Morocco for which a man may require a certificate. He can even divorce his wife if he realizes that after their first sexual intercourse that this condition was not fulfilled.
Therefore a “deflowered” suffers less than a virgin does from consequences of rape, because the first has already lost her honor before, while the second have been denied it despite her will. The penalty for rape defloration is therefore much higher (ten to thirty years, Art. 488 of the Penal Code, while a rape without defilement is punishable by five to ten years under Article 486 of the same code).
This idea refers us to one of the major reasons victims invoke for not reporting about their rape or to have waited “too long”. It is the victim’s feeling of shame, the fear of the abuser and the fear that disclosure of the case leads to additional humiliation. Rape is thus one of the few crimes in “which the author feels innocent and the victim shameful”. In addition to that, in Morocco and in the majority of Arab countries, rape victims and their families attempt to find over all any “repair” to the sexual abuse, including through marriage of the victim to her rapist. The honor must be saved before everything else.
Also, it is a current assumption that rape is inevitably accompanied by physical coercion. Resulting the idea that a rape without violence is suspect and induces consent from the victim. But rape is primarily an act of domination, which is not only physical.
The difficulty to react may come from the sudden and brutal nature of the event, but also for psychological reasons related to the fact that aggression does not correspond to the image that we have of the aggressor, which can be a person we thought to be trusted. The victim may not react violently to avoid harm to the abuser, or because of his status. Rape can be “facilitated” by a grip, linked itself to a hierarchical relationship, a relationship of power over the victim. And way more when the abuser is a political, even only on a local level, the moral ascendancy of the aggressor and the surprise is even more powerful.
It is clear that in Moroccan law definition of rape is very vague, incomplete and narrow. The article 486 of the Penal Code defines rape as “an act by which a man has sex with a woman against the wishes of the latter. For example, rape is only recognized committed by men and suffered by women. However, acts of sexual violence can be committed by anyone (male or female) and the victim can be anyone (male or female). Secondly, according to the same article, non-consensual “sexual act” applies only to vaginal penetration. The definition does not include other forms of anal and oral penetrations. It does not include the introduction of other body parts or objects in these three ways.
Our society must now pay more attention to the protection of the individual person and not just a collective order established. But this transition from collective to individual means accepting a principle that Moroccan society is still far from accepting, and that is the freedom of self-determination of the human person in sexual matters. In other words, his freedom of choice to have or not to have sex with the person and partner that suits him.
It is time that rape against any individual male or female to be primarily considered an offense to the deep intimacy of the human person, and not only to the divine order or the social order. Rape is not repairable and even less by the marriage of the rapist with his victim. If there are moral reparation, it must be done by a criminal trial.