Photo by Fabio Santaniello Bruun on Unsplash
By Charlotte Lang
In an age of purported sexual liberation, it can be easy to forget that mandates around sexuality occupy not just a social sphere but a legal one. Since major reforms to the Moroccan Moudawawa (family code) were implemented in 2004, the nation has been lauded for its balance of women’s rights within an Islamic legal framework. While it has been described by the EU as being the most advanced country in the southern Mediterranean in terms of its legal system and democratisation, its conservative laws regarding sexual conduct continue to pose an imminent threat to civil freedom and women’s health. The imprisonment of a young single mother who was the victim of revenge pornograhy in February has reignited the debate on the penal code and sexual freedom at large.
Legal Framework
Article 490 of the penal code criminalises sexual relations outside of marriage, and article 491 criminalises adultery. Moroccan-French journalist Leïla Slimani has described how young women are subject to cultural obsession with virginity in ways that are fundamentally distinct from that of western women. Indeed, a vast body of ethnographic literature supports the claim that women are judged more severely than men for their sexual conduct and purity in Morocco and the Arab world at large. Certificates of virginity are customary to marriage and naturally only applicable to women. Thus, regardless of individual beliefs, engaging in extramarital sex carries the risk of not only cultural shame but potential criminal charges. Figures from the public prosecutor’s office reveal that in 2019 15,192 people were charged under article 490.
Pregnancy and Reproductive Health
While in practice most citizens do not abide by these laws, the fear of persecution is ubiquitous and has differing implications for women depending on socioeconomic status. Of course, conversations regarding sexual conduct can never be considered in isolation as they are inextricably linked to reproductive health and childbirth. In Morocco childbirth outside of marriage is not legally recognised, and while the reformed Moudawawa allows unwed mothers to register their children the legal process is heavily bureaucratic and daunting to low-income women. Laws in the amendment are also contradictory to the extent that local authorities understand them differently. Illegitimate children face not only social exclusion but impediments to accessing public services such as healthcare and education. Services that are not luxuries but fundamental human rights.
Abortion and abandonment are thus natural byproducts of such a legal framework. The charity Insaf estimates that in 2010 24 babies were abandoned each day. As scholars such as Irene Capelli have noted, while outlets for legal abortions exist within Morocco, reproductive governance is centred around neoliberal policies that emphasize personal responsibility. Women must meet certain criteria of social and material vulnerability to be entitled to care via NGOs, often marriage is one of those prerequisites. These bureaucratic burdens thus inadvertently incentivise women to seek illegal and unsafe abortions. The widespread culture of shame also deters unmarried women and men from consulting health centres for contraceptives and HIV screenings for fear of violating social norms of respectability. Women living in rural regions are similarly chronically neglected by the state due to a lack of healthcare infrastructure. The result is that hundreds of illegal abortions are carried out each day irrespective of class and educational status. In this way, the legal parameters for sexual conduct are not merely a debate on morality but of public health. Reform to the penal code must be accompanied by reform in the greater healthcare infrastructure in order to sufficiently address human rights within Morocco.
Larger Context and Implications
Administered first and foremost by the state, Slimani has broached the idea that these penal laws ultimately produce citizens adapted to a larger system of oppression. The severe social controls that women are subject to denies them autonomy and makes men the government’s instrument of authoritarian control within the family sphere. Article 490 thus has a much more insidious effect on citizenship and social control in Morocco at large. It also reaffirms the importance of viewing gendered oppression as symptomatic rather than isolated from larger mechanisms of state control.
It is worth noting that discussions around gender and Islam are often reductive and culturally charged. Jasmin Zine has observed that Muslim women are caught between two competing discourses on their identity: the fundamentalist, patriarchal narrative concerned with confining their social and public lives and the western feminist narrative fraught with neo-colonial undertones. The latter is what we see most overtly in France with the banning of headscarves under the guise of secularism and liberation. A practice that has consistently been traced back to France’s imperial past, specifically the public unveiling ceremonies lead by the French army during the Algerian War of Independence in 1958 which were framed as spaces of empowerment and emancipation for Muslim women. There is also a pervasive tendency to view Islam as a monolith, whereas Islam, like other dominant religions, is a global phenomenon subject to cultural adaptations and interpretations. In the Arab world, a pre-Islamic patriarchal culture was wedded to Islamic jurisprudence and hence continues to be bound by it. In this light, Moroccan women must exist at the forefront of discussions regarding the repeal of the laws and gendered inequality in the nation at large.
Indeed, in stark contrast to notions of a helpless female Muslim majority, the call for reform in Morocco has been consistently initiated by its own women. Groups such as l’Union de l’Action Féminine called for changes to the Moudawawa for decades prior to its reforms on the grounds of the Universal Declaration of Human Rights and Islamic principles. Since 2019 grassroots collectives such as Hors-la-Loi, Collective 490, and Moroccan Outlaws have organised a new wave of protests, prompting numerous members of parliament to speak out in favour of repeal and a review of the penal code. Given the historical precedent, it is now more important than ever that Moroccan women and citizens alike mobilise and rally for legal reform in the fight for sexual liberation.
Protocol Magazine 