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The Repeal of Article 490 of the Moroccan Penal Code Claimed by the Moroccan Outlaws Collective 490

Politics
13/2/2021
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Reminder of the facts.

Hanaa, a 24-year-old woman, was sentenced on 4 January 2021 to one month's imprisonment and a fine of 500 dirhams for "sexual relations outside marriage" and "indecent exposure" [1 ], after a sexually explicit video was broadcast [2]. The man in the video is no longer on Moroccan soil. The individual who recorded and broadcast the video is also abroad. The Moroccan justice system has issued a national arrest warrant for the man in the video. He resides in the Netherlands: a state with which Morocco does not have a judicial cooperation agreement [3].

On 3 February 2021, upon her release from prison, Hanaa declared her intention to file a complaint against the pornographic sites that had distributed the video, and against the person who filmed and distributed the images without her knowledge. At the same time, the Moroccan Outlaws 490 Collective has started a virtual campaign to repeal article 490 of the Penal Code [4]. The #STOP490 then spread on the Moroccan web.

A Dubious Communication from the Activist Collective.

On 3 February 2021, the Moroccan Outlaws 490 Collective shared the following message on its InstaGram account: " To support Hanaa from Tetouan and demand the repeal of Article 490 of the Penal Code, spread it #STOP490 " [5]. This activist group, which defines itself as a "Moroccan social and citizen movement", took the opportunity to express its main demand: to repeal Article 490 of the Penal Code. What about Hanaa, who is guilty under article 490, but also a victim of her ex-partner's revenge porn under article 447-1[6 ]?

 

If we look at the InstaGram publications of the Collective, we observe that it is repeatedly stated that " the author of the video is not under judicial investigation ", without specifying why. According to most of the media, which refer to investigation reports and the statements of various lawyers, the author of the video resides abroad and is not really identified. It is precisely for these reasons that the individual has not been brought to justice, and not for any alleged leniency on the part of the authorities implicitly suggested by the Collective. As for the man in the video, he was identified and a national arrest warrant was issued for him. This detail was also kept quiet by the association throughout the promotion of the virtual event. The shadowing of this additional information has fuelled frustration and a sense of persecution in the various comment sections of the publications.

 

Still on its InstaGram account, the Collective suggests that only Hanaa, in her capacity as a woman, is targeted by the law: " Victim of sexual exploitation and the broadcasting of private videos without her consent, it is nevertheless Hanaa who, through the application of Law 490, finds herself behind bars... This shows how insidious and dangerous this article is. Through this message, the association suggests an outrageous confusion. Hanaa has certainly suffered harm within the meaning of Article 447-1 of the Penal Code, but it is not for this that she has been convicted. This woman, who admitted her offence, was indeed convicted of indecent assault and sexual relations outside marriage under Articles 483 and 490 of the Criminal Code. The prejudice suffered by an offender does not nullify the offence he commits. Moreover, Hanaa's lawyer himself states that "the issue at stake in this case is the protection of intimacy and privacy [7] ". After failing to mention the details of the other two individuals involved in the case, the Collective has shamefully exploited Hanaa's status as a woman for its own militant ends. Is there really a well-founded link between the prejudice suffered by Hanaa and the demands of the Collectif? It is clear that this is not the case.

 

The Collective is based de facto on a misrepresentation of the case. It is a poorly concealed manipulation of its +85,000 subscribers[8]. In addition to this point, it is noticeable that the activist group did not particularly insist on the real damage done to Hanaa, who was subjected to the dissemination of private information without her knowledge. Isn't that what she is really being victimised for? Why did they not insist more on the prosecution of the other two individuals involved? Finally, the Collective is no longer really defending the young woman. Similarly, it no longer really cares about her psychological situation since it continues, to her detriment, to relay this case for strictly militant purposes. Moreover, Karima Nadir, spokesperson for the Collectif, does not hide the opportunism of the association, which knowingly surfed on the Hanaa affair to recall the diversity of the demands for the repeal of all the articles of law that hinder the individual freedoms[9 ] of Moroccans.

 

What about #STOP490? The Collective claims to defend a cause that concerns all Moroccans. An inclusive initiative that would raise the voice of those traditionally silenced. Although the communication of the virtual mobilisation was made - at first - in French, Arabic and English, the hashtag is in English. This may seem insignificant, but it is legitimate to wonder who is the real target audience of the operation carried by this hashtag. Wouldn't the use of a hashtag in Arabic or Darija have been more judicious in view of the objective pursued? The target audience would no longer be the Moroccan people as a whole, but a section of the population that is usually receptive to hashtags in foreign languages. More broadly, the general communication or the testimonies collected on the Collective's InstaGram network are almost all in French or English. Does the Collective really set itself up as the voice of all Moroccans? The Collective's established communication suggests not. More broadly, was not one of the association's objectives to place its demands in the international media spotlight? Indeed, the Collective relays via InstaGram the passage of the #STOP490 in the Dutch, Egyptian, Swiss press or even on BBC Arabic. Is this supposed to be rewarding? Is it supposed to represent a significant advance for the demands being made?

Religious Approach To Article 490 Of The Penal Code.

This point will be modestly addressed. It will be left to the specialists in the field to elaborate on the issue. The Preamble of the Constitution states that Morocco is a "sovereign Muslim State". Similarly, the third article of the Constitution states that 'Islam is the religion of the State'[10]. Muslim law designates fornication as a great sin. It is punishable by 100 lashes, provided that the clear and unambiguous testimony of 4 adult men is obtained beforehand. For its part, Moroccan law refers to fornication essentially in Article 490 of the Penal Code, which states that: "all persons of different sexes who, not being bound by marriage, have sexual relations with each other, shall be punished by imprisonment of one month to one year". The intervention of a specialist in order to shed light on the sources of law inspiring this article would be relevant. One may wonder whether custom, a moderate appreciation of the legal provision of Muslim law[11], an arbitrary choice of the Moroccan legislator - or all three - have been called upon. In any case, if the penalty incurred in Moroccan law is not the same as that incurred in Muslim law, religious morality seemed to justify the wording of Article 490 of the Penal Code.

Religious Morality And Moroccan Ethics.

The Moroccan Outlaws 490 Collective calls for the repeal of Article 490 of the Penal Code in the name of individual liberties. However, under what prism are these individual freedoms invoked? Are they being invoked from the perspective of Moroccan society? Or from the perspective of a foreign society? At first glance, it is easy to see that the demand for the repeal of the law is characterised by a Western approach to the issue, literally disregarding Moroccan particularism with regard to the problem posed.

 

Until now, Article 490 of the Penal Code has never really been the subject of considerable divergence within Moroccan society. Some will speak of a relative consensus on the issue; others will point to the absence of a conclusive study or even a taboo that makes it difficult to speak out on the matter. In any case, since the law came into effect, there has not been the slightest instance of it causing discord or marking a significant divergence in Morocco. Therefore, the absence of a large-scale study, as it stands, can be justified by the fact that it is not necessary. However, the intervention of a specialist would be welcome in order to shed light on the possible applicability of this norm before its inclusion in the Penal Code. This would make it possible to determine the relationship of Moroccan society to this prohibition prior to 1913[12], and would then fix those who would agree that fornication was not legally condemned until then.

 

Through its various demands, the Collective quickly disregards the Moroccan social cohesion[13] within which many values such as chastity, modesty and honour, to name but a few, are articulated. These values are intrinsically linked to Islam but also to the secular social heritage of Moroccans. One can consider that these values are part of a wider set of convictions consciously shared by all. A sort of ethical corpus forged in the conscience of each individual. One could also have fun questioning this statement due to the lack of detailed study.

 

More concretely, the methodical process, which is hardly compatible with the ethical corpus of Moroccan society, combined with the Collective's aggressive approach, naturally diminishes the receptivity of the message it sends to all Moroccans. The Collective has not even made the effort to adapt its discourse to the Moroccan specificity. The association seems to impose its will on the whole of the Moroccan people by desperately clinging to the ephemeral forums granted by some Western media; which does not bring the slightest added value to the content of the debate required in Morocco.

Repeal Of Article 490: A Legitimate Claim?

One may indeed wonder by whom and for whom the initiatives of the Collective are undertaken. This questioning may once again seem trivial; that said, the form of this Movement betrays its stated ambitions. Indeed, Oum El Ghait Ben Sahraoui specified in 2019 on the set of TV5 Monde[14] that the initiator of the Manifesto to defend the individual freedoms of Moroccans was Sonia Terrab and not Leila Slimani: this was to avoid giving the impression that the latter was an external production in Morocco. However, a glance at Sonia Terrab's FaceBook account shows that she expresses herself exclusively in French. Events and articles related to her claims are also in French. Finally, even though she lives in Morocco, the struggle she leads through the Moroccan Outlaws 490 Collective is almost exclusively addressed to a French-speaking public. Need we remind you what language is spoken by Moroccans? According to the Organisation Internationale de la Francophonie, 35% of Moroccans are French-speaking[15]. Are we to understand that the Manifesto of the Collective defends the individual freedoms of only 35% of Moroccans? Are we to understand that the individual freedoms of 65% of Moroccans are not worth defending? How can we claim to be raising awareness or defending our people when we address them in a language that is foreign to them? Two thirds of the Moroccan population are de facto excluded from the debate. So can we really consider the claims of this association as truly legitimate? 

This collective appears to have very little legitimacy in terms of the demands it expresses. Rachid Hachachi already confided to RT France[16] in 2019, during the Hajar Raissouni affair, that the initiatives of the Moroccan Outlaws 490 Collective consisted of bourgeois demands. The political scientist also mentioned a "desire to transpose a struggle that is not that of Moroccans but that of a small Westernised Moroccan minority into the lifestyle of the Moroccan petty bourgeoisie". A description that seems to suit the Collective if one looks at its non-inclusive communication methods. Similarly, the Collective is satisfied with a foreign media platform while relegating to the background that of the state for which its demands are addressed.

Is the Collective Really Trying to Start the Debate? Is the Debate Legitimately Based?

The Moroccan Outlaws 490 Collective claims to be committed to the establishment of a debate around its demands. However, this is not what we can observe from its various procedures. Whether it is a question of its aggressive and denigrating communication towards Moroccan men and women attached to the morals it fights against, or of the knowingly disguised reality it suggests to its public in order to create a misleading sensationalism; in both configurations, the association restricts the place left to debate.

 

Thus, by focusing strictly on the individual freedoms brandished, the Collective completely ignores the social consequences that the possible repeal or amendment of laws considered liberticidal could generate. Supporters of #STOP490 agree that the decriminalisation of sexual relations outside marriage would not constitute any social disruption. The post-repeal social transition is taken by these activists - wrongly - as a given. The reality could indeed be quite different. Let us assume that Article 490 of the Penal Code is repealed: would Moroccan mores make access to contraception commonplace? Would this open the door to an explosion of sexually transmitted diseases, an increase in unplanned pregnancies and births, the construction of new orphanages or the potential increase in clandestine abortions? There is absolutely no guarantee that these are not the scenarios that await Moroccan society. And none of these issues are really addressed by the activists.

 

A parenthesis on abortion should be opened. Article 453 of the Penal Code states that: "abortion is not punishable when it constitutes a necessary measure to safeguard the health of the mother and when it is openly performed by a doctor or surgeon with the permission of the spouse". An abortion then permitted but strictly conditioned. The Hajar Raissouni episode in 2019 was an opportunity for the Collective to renew its demands for the amendment of this law. The Parliament recently intended to broaden the legal conditions for abortion[17], but this progress would be "far from sufficient"[18 ] according to the association, which hopes to make abortion an acquired right for all women, regardless of the circumstances in which they resort to it. In this respect, light could be shed on the speech of Dr Aissam Bachir[19], who recalls the content of Simone Weil's 1974 speech on the issue of abortion in French society. The former French stateswoman made it clear that abortion should remain the exception in situations where there is no way out[20]. According to the Doctor, abortion is not a Right but a medical necessity.

 

Amending Article 453 to broaden the conditions for abortion to curb its clandestine practice would be welcome in Moroccan society. This new provision would remain compatible with the Moroccan ethical corpus; however, the Collective does not intend to settle for it. Has the association asked the opinion of Moroccan women? Perhaps they are not asking for as much as the Collective is demanding of the legislator? Perhaps this is the case, but what do we know? Finally, on what basis does the Collective legitimise its demands? The debate is not really suggested, the impasse is made on important notions of the debate such as the place of the Right to life in front of the Right to abortion claimed. Whatever the claim, the militant methodology is reproduced and de facto dismisses the allegedly healthy debate.

 

On the one hand, the Collective is moving away from any prospect of debate; on the other hand, it is fuelling the social rift between its supporters and the rest of the unsolicited Moroccans. This fracture was illustrated on social networks through the confrontation of the hashtags #STOP490 and #KEEP490, a confrontation that did not bring any added value to a debate that deserves to be addressed. The attitude of the Collective is regrettable in many respects: this association has shown itself to be non-inclusive and very uncomplimentary. One wonders whether, if it is not committed to social peace in Morocco, the Collective really wants to develop solutions to the various societal problems.

What's Wrong With Article 490 of the Penal Code

The criticism of Article 490 of the Penal Code is relatively vague. Does the Collective object to the content of this law? Or is it its applicability that is being challenged?

 

As a reminder, Article 490 states that "all persons of different sexes who, not being bound by marriage, have sexual relations with each other, shall be punished by imprisonment of one month to one year". The question that arises here is that of the establishment of the crime. How is proof to be established? In principle, proof is established by a report of the crime in flagrante delicto drawn up by a judicial police officer or by the confession of the accused[21]. 21] In practice, it is very difficult to collect these elements. The authorities are then left to guess about potential sexual relations. This is an overstepping of the function, forcing the authorities to make judgements on the appearance of individuals. This is the first anomaly in the applicability of Article 490 of the Criminal Code. This new approach to sexuality by the public authorities sheds light on the social rather than moral dimension of the criminalisation of bad manners[22]. Once again, in practice, the legal prohibition of sexual relations outside of marriage tends to be implemented only against girls, generally from precarious classes[23]. This is a second anomaly in the applicability of Article 490 of the Penal Code. By opting for this tracking practice, which is essentially focused on the female gender, the male gender gets off lightly. On the one hand, the authorities' improvised applicability - which is obviously not legislated - creates unequal treatment; on the other hand, it affects the integrity of the Moroccan woman who, when subjected to arbitrary police control, is often categorised as a prostitute[24] for the sole fact of having had an activity deemed to be similar. Mériam Cheick evokes the idea of illegalism[25] borrowed from Foucault, reflecting in this case the false neutrality of the authorities with regard to the female and male genders. It is precisely in this sense that the Moroccan woman suffers an injustice, and not because she is condemned for an offence that she has actually committed[26 ] as the Collective argues. This injustice suffered by the Moroccan woman constitutes a third anomaly in the applicability of Article 490 of the Criminal Code. If the three elements mentioned above illustrate the fallibility of this law, another major consideration alone would perhaps be sufficient to call into question the legitimacy of the improvised applicability of the legal provision. Doesn't the improvised attitude of the authorities constitute an infringement of the right to privacy, a right guaranteed by the Constitution in Article 24? "Every person has the right to the protection of his private life. ...] The home is inviolable. ...] Private communications. "The question may seem legitimate. This potential infringement of the right to privacy constitutes a fourth anomaly in the applicability of Article 490 of the Criminal Code.

 

As a statistical aside, the number of arrests for sexual relations outside marriage has been falling in recent years. As an illustration, the city of Tangier recorded 404 cases in 2009, then only 80 in the year 2014. This decline is less a reflection of the actual fall in sexual relations outside marriage than of the police's attenuation of repressive measures in matters of morality. The young anthropologist[27] goes on to say that 'the moralisation of the current decade seems to involve the security of the city and, therefore, a strengthening of police work focused on the reminder not of the moral order but of the social order'[28]. Finally, it can be seen that although the number of arrests for sexual relations outside marriage rose to +15,000 in 2019, the overall trend is downwards[29].

What Needs to be Changed in Article 490 of the Penal Code.

Finally, one may ask what the appropriate solution would be with regard to Article 490 of the Criminal Code. If one had to strictly weigh the pros and cons, one might be hostile to its repeal, and perhaps a little less so to its preservation. The Collective has not been convincing in justifying and legitimising its ambitions. At the same time, the supporters of #KEEP490 did not have to force their case in view of the poor level of demands they were confronted with.

 

The empty opposition between #STOP490 and #KEEP490 has literally stifled any attempt at a pragmatic approach to the issue, effectively ruling out the possibility of a third way out of this battle of ideas: the amendment of the article. What if #EDIT490 was in fact the appropriate solution? An amendment to the legal provision insisting on [1] gender-neutral treatment; [2] objective collection of evidence no longer based on the random assessment of the police officer; [3] the establishment of a third category, distinguished from prostitution and adultery and compatible for both women and men; 4] the clarification of what is and is not invasive of the right to privacy when the police officer is exercising his mission and to clearly determine its limits, in view of the protection of the right to privacy, a constitutional right guaranteed to all individuals. It may seem obvious that a single sentence is insufficient to clarify the complexity of Article 490. Mustapha Ramid stated in December 2019 that 'the State does not have the right to break into private space, to spy on and break down the doors of adults to transgress their intimacy[30] '. 30] A statement that could be cleverly articulated through the amendment of Article 490. In any case, this option seems the most appropriate.

 

The repeal of Article 490 of the Penal Code will never be allowed in Morocco. These claims are utopian. The King of Morocco is partly supported by religious legitimacy, and Islam is certainly not just an accessory in the exercise of power. What would be the attitude of the Moroccan people to the announcement of the decriminalisation, by the Commander of the Believers, of sexual relations outside marriage? What would be the reaction of the neighbouring peoples who, for several centuries, have been linked to the Muslim frame of reference enshrined in the Moroccan royalty? If the reference of Islam on a regional scale is removed from its religious legitimacy, what would be the strategic consequences both for Morocco and for the neighbouring states whose peoples are for the most part Muslims? The abrogation claimed is part of a strictly individual dynamic, excluding de facto any collective approach, whether national or international. These demands relegate the collective interest to the background in favour of marginal individual interests. This is an ultimately egoistic perception, notably supported by the Moroccan OutlawsCollective 490.

Closing remarks.

The Moroccan Outlaws Collective would benefit from being more inclusive. It would also benefit from being more in tune with the Moroccan reality that it tries not to see or misunderstand. Similarly, to think that the solution exists only through the blessing of the West is a blunder. This opening to the outside world also encourages foreign interference with undesirable ideology. Moroccans of all stripes would give more credence to an initiative with a strong Moroccan stamp. The salvation of Moroccan society will only come through the Moroccan people and their own ideas. Inspiration is certainly an opportunity; the transposition of foreign systems is a flaw.

If we are talking about the dynamics of the opposition of #STOP490 and #KEEP490, the reflection around #EDIT490 would be much more relevant and constructive. If one is more broadly involved in a dynamic aimed at Moroccans as a whole, hashtags in Darija or Amazigh would probably have been preferable. It is not Europe that needs to be made aware: it is the Moroccans.

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References :

1] Article 483 of the Penal Code: Anyone who, by his voluntary state of nudity or by the obscenity of his gestures or acts, commits a public outrage to modesty shall be punished by imprisonment of one month to two years and a fine of 120 to 500 dirhams.

2] Video from 2015, recently released on the web

3] Information clarified by Ms Ghizlane Mamouni, lawyer at the Paris bar and member of the Collectif 490. https://www.lemonde.fr/afrique/article/2021/02/03/au-maroc-une-affaire-de-revenge-porn-relance-le-debat-sur-la-liberte-sexuelle_6068672_3212.html

4] "All persons of different sexes who, not being bound by marriage, have sexual relations with each other are punished by imprisonment of one month to one year.

5] https://www.instagram.com/p/CK0hh_KlKi4/

6] "Anyone who knowingly and by any means, including computer systems, intercepts, records, broadcasts or distributes words or information emitted in a private or confidential setting, without the consent of the authors, shall be punished by imprisonment of six months to three years and a fine of 2,000 to 20,000 dirhams. The same penalty shall be imposed on anyone who knowingly and by any means captures, records, disseminates or distributes a photograph of a person in a private place without their consent.

7] https://www.medias24.com/affaire-de-la-video-sexuelle-a-tetouan-une-procedure-d-appel-bientot-lancee-15887.html

8] Sum of subscribers on social networks InstaGram and FaceBook

9] Karima Nadir: "To change mentalities, we need to change the laws", 5 Feb. 2021 https://www.youtube.com/watch?v=dD9XUOLVqVY

10] Moroccan Constitution https://mjp.univ-perp.fr/constit/ma2011.htm

11] The Moroccan Nation is committed to a so-called "moderate" approach to Islam, Art.1 of the Constitution

12] 1913 saw the entry into force of the Penal Code. This date coincides with the beginning of the protectorate.

13] What Ibn Khaldun described more broadly as the Asabiyya, which he noted already during the Almoravid era.

[14] htps://www.instagram.com/stories/highlights/18090315529101276/

15] Such a percentage may seem somewhat overestimated https://www.medias24.com/francophonie-francais-maroc-marocains-942.html

16] Sexual freedom in Morocco, a demand of a "minority" of Moroccans for Rachid Hachachi https://www.youtube.com/watch?v=BD4C3Zm8xd4&list=ULxRVLcpFPUmI&index=12861

17] Abortion would be legal if it is the result of rape, if it is the result of an adulterous relationship, in cases of insanity and if a fetus has a genetic defect that cannot be treated at the time of diagnosis. The operation must be supervised by a competent medical body, and performed before the 90 days of pregnancy.

18] https://www.instagram.com/p/B7ReGvSFEAJ/?utm_source=ig_embed

19] "Reflections on the debate on individual freedoms" By: Dr. Aissam Bachir https://www.youtube.com/watch?v=gJpo5-41il0&feature=share

20] Simone Veil: her historic speech in favour of abortion, 26 November 1974 https://www.youtube.com/watch?v=cTAmCUgoSZ4

21] Article 493 of the Criminal Code: Proof of the offences punishable by Articles 490 and 491 shall be established either by a report of a flagrant offence drawn up by a judicial police officer, or by a confession made in letters or documents emanating from the accused or by a judicial confession.

22] Mériam Cheikh, "De l'ordre moral à l'ordre social. L'application des lois pénalisant la sexualité prémaritale selon des lignes de classe", L'Année du Maghreb, 17 | 2017, 49-67.

23] [25] [28] Ibid

24] Ibid, "a category they define not in terms of sexual practices but primarily in terms of social belonging".

26] Within the meaning of Article 490 of the Criminal Code

27] Mériam Cheikh

29] https://www.medias24.com/video-intime-a-tetouan-campagne-de-soutien-et-appels-a-l-abrogation-de-l-article-490-16311.html

30] https://fr.le360.ma/politique/mustapha-ramid-la-loi-ne-sanctionne-pas-les-relations-sexuelles-consenties-dans-lespace-prive-203732