Morocco

The Convention has been ratified. However, Morocco has a reservation to article 29, relating to the administration of the Convention and arbitration in the event of a dispute over the application of treaty provisions. 

Morocco also maintains a declaration to article 2 relating to policy measures regarding the elimination of discrimination against women, stating that the government is ready to apply the provisions of this article as long as these do not conflict with the constitutional provisions regulating the laws of succession to the Moroccan throne and the Islamic Sharia.

The government also maintains a declaration to article 15 (4) stating that it can only be bound by the provisions of this paragraph, in particular those relating to the right of women to choose their residence and domicile, as long as these do not contradict articles 34 and 36 of the Moroccan personal status code.

1. the Moroccan Constitution acknowledges in the preamble the commitment to human rights principles as stated in international covenants and agreements.
2. the Constitution prohibits in the preamble discrimination based on sex and gender.
3. the Constitution includes specific provisions on women’s rights and gender equality. Article 19 stipulates that the State aims to implement the principle of equality between men and women. “Thus, to this purpose, the authority for equality and the fight against all forms of discrimination was established.”
4. the Constitution adopts affirmative measures to realize the participation of women but not parity. Article 30 provides for the promotion of equality of opportunity between women and men in elective positions.

The main laws that are not in line with international obligations pertaining to women rights are as follows:

1. The law on combating violence against women and the penal code do not criminalize marital rape. Article 486 of the penal code stipulates that “rape is a man forcing sexual intercourse on a woman without her consent, and it is punishable by five to ten years in prison”. However, marital rape is not explicitly criminalized and the law on violence against women did not amend the penal code provision on rape, which does not list marriage among aggravating circumstances for sentencing rape offenders.
2. Article 449 of the penal code prohibits abortion. Article 453 states that abortion is legal only where it is necessary to save a woman’s life: “abortion is not punishable if it is necessary to preserve the mother’s wellbeing and when performed overtly by a doctor or a surgeon with the husband’s permission.”
3. Article 418 of the penal code provides that a husband or wife benefits from a mitigated sentence if they murder, injure, or beat their spouse who is caught in a sexual act out of marriage.
4. Article 491 of the penal code considers sexual acts out of marriage an offence.
5. Article 498 of the penal code criminalizes prostituted woman. The law does not provide them with protection against violence and exploitation they are subjected to.
6. The family code does not ensure equal rights between women and men during marriage and divorce relating to:
   · Polygamy: Polygamy is allowed.
   · Guardianship: Fathers are the sole guardians of their children.
   · Inheritance: The inheritance, which is based on Sharia rules, provides that women’s share of an inheritance is less than men’s.
   · Divorce: Men have a right to divorce by repudiation without resorting to the court while women have access to limited types of divorce that can only be obtained from a court.
7. The labour law prohibits the employment of women in occupations listed in regulations, including work that poses “excessive risk”, because it is considered beyond their capabilities, or is likely to undermine morality.

There is a law on combating VAWG (Law on Combating Violence against Women of 2018). The law covers physical violence, psychological violence, sexual violence, economic violence, but does not explicitly criminalize marital rape. Some forms of VAWG are criminalized under different laws. Sexual harassment and rape are criminalized under the penal code. Sexual harassment in the workplace is prohibited under the labour law. FGM is not legally prohibited but it is believed not to be practiced in Morocco.

Other forms of VAWG that are not comprehensively criminalized include: marital rape, polygamy, inequality between men and women in inheritance, “honour” crimes.

There is a specific law addressing VAWG (Law on Combating Violence against Women of 2018). The law includes the four dimensions pertaining to the elimination of violence against women: prevention, protection, prosecution, and support. It increases penalties for some forms of violence in the penal code when committed within the family and establishes new crimes including forced marriage, squandering money or property to circumvent payment of maintenance or other dues arising from a divorce, expelling or preventing a spouse from returning home, and sexual harassment in public spaces as well as cyber harassment. The law does not cover all forms of VAWG such as marital rape (see indicator 4).

Other laws relevant to combating the different forms of VAWG include: the nationality law of 1958, as modified in 2011, the penal code of 1962 last amended in 2019, the family code of 2004, the labour law No. 65.99 of 2011, the anti-trafficking law No. 27.14 of 2016.

The law on combating violence against women of 2018 defines violence against women as “any act based on gender discrimination that entails physical, psychological, sexual, or economic harm to a woman.” The law does not provide a definition of domestic violence and marital rape is not included in the definition of sexual violence.

The parliament does not perform regular oversight role on public legal awareness on laws of VAWG. However, two years after the law on combating violence against women came into force, the parliament organized several thematic days to follow up on the implementation of law, during which the relevant governmental sectors presented the outcomes of their commitments to this law. CSOs also participated in these parliamentary activities alongside the Human Rights Constitutional Institutions.

Articles 13 and 14 of the law on combating violence against women of 2018 provides for the establishment of institutional cells supporting women victims of VAWG within different government’s institutions including courts.

The right to sexual and reproductive health is guaranteed by laws. However, abortion is illegal. Penal code (article 453) states that “abortion is not punishable if it is necessary to preserve the mother’s wellbeing and when performed overtly by a doctor or a surgeon with the husband’s permission”.

The protection of women and girls from abusive partners during marriage and divorce remains incomplete in the existing laws.

1. The law on combating violence against women and the penal code do not explicitly criminalize marital rape.
2. Article 449 of the penal code criminalizes abortion.
3. Article 418 of the penal code provides that a husband or a wife benefits from a mitigated sentence if they murder, injure, or beat their spouse who is caught in a sexual act out of marriage.
4. The family code allows polygamy, even if restricted. Article 40 of the family code states: “polygamy is prohibited if the wives are not treated equally and fairly, and if the wife has stated as one of her conditions that her husband does not marry a second wife.”
5. Under the personal status law, the father is the legal guardian of his minor children; the mother is guardian if the father is absent or is deprived of capacity.
6. The inheritance, which is based on Sharia rules, does not guarantee the same rights for women and men.

The penal code under article 486 refers to rape as when “a man forcing sexual intercourse on a woman without her consent, and it is punishable by five to ten years in prison”. This reference has been used by the judiciary in respect with the decision of the court of appeals in Tangier, file number 2612/2019/203, where it was stated that “the Moroccan legislator defined rape as a man forcing sex on a woman without her consent, not excluding the married woman, hence, the law can also apply to married women. However, the law on combating violence against women and the penal code does not mention explicitly marital rape and do not explicitly provide legal protection from marital rape.

The law on combating violence against women (article 503) prohibits sexual harassment of women in public places. The sentence is increased if the perpetrator is a work colleague or a security agent entrusted with “keeping order in public spaces and such,” or one of the victim’s legal guardians, or any person with power and authority over the victim, or a person entrusted with the victim’s care, or if the victim is minor. The labour law also prohibits sexual harassment and provides that an employee can claim unfair dismissal if the employee has to leave employment because of serious misconduct by the employer or the head of the company, including as a result of any form of violence or aggression against the employee, sexual harassment, or incitement to indecent conduct.