The case of Sanaa (who has not yet reached the age of 12) from the suburbs of the Moroccan city of Tiflet, has raised concerning questions about the Moroccan justice system. The underage child is a victim of repeated rape by three individuals, resulting in pregnancy. The concerns came following the lenient primary sentences issued against the perpetrators, which did not exceed two years, and thus were not a deterrent to such heinous and recurrent crimes being committed in various Moroccan regions, and that both female and male children have not been spared from. This calls for the accountability of the Moroccan judiciary and legislators in particular, to identify the reasons behind these lenient sentences and the wide discretionary power of judges, which are often disproportionate to the severity of such heinous crimes that violate the bodies of young children.
Sanaa, a 12-year-old girl, was repeatedly raped by three men, resulting in pregnancy, but a judge gave lenient sentences to the three rapists – just two years – causing outrage among the Moroccan community. So is the main problem with the justice system?
With Sanaa from Tiflet, Mariam from Midelt, Adnan from Tangier, Amina Filali from Larache, and before them the children of Kenitra, who were victims of rape by the Spanish pedophile "Galvan", and the rape and murder victims of the "Taroudant serial killer", and many others, Moroccan society and legislators are questioning sexual assault. Despite the verying sentences issued against the perpetrators, rape is still being committed, and children's bodies are still being violated in Morocco, making them vulnerable to double violence: the violence of the crime committed against them, and the violence of the law that often fails to do them justice. This means that these penalties are neither a deterrent nor are effective in curbing this heinous act and protecting children.
Unjust rulings... If it weren't for public opinion?
The best evidence of these unfair rulings is what the Court of Appeal in Rabat corrected in the case of the child Sanaa from the "Ghazouna roundabout" on the outskirts of the city of Tiflet.
The initial verdict against the three rapists was shocking. Despite the serious and aggravated nature of the case, the court sentenced the first and second defendants to two years in prison within the limits of 18 months, and the third defendant to two years in prison, despite the fact that this rape resulted in pregnancy. The light sentences prompted associations and human rights actors to denounce the verdict and demand its reconsideration. In addition, the Moroccan Minister of Justice Abdellatif Wehbi himself expressed his surprise and disapproval of this lenient ruling against the perpetrators, especially since it resulted in pregnancy and childbirth, but the condemnation that did not appeal to the Judges' Club body, which considered it a "violation of the independence of the judiciary", and an unacceptable statement from the Minister of Justice. Nevertheless, the Court of Appeals reconsidered the verdict under pressure from human rights organizations and the public, because the case turned into a public opinion issue, raising the prison sentence to twenty years for one of the defendants, while sentencing the other defendants to ten years each. It also ordered the main defendant to pay 60,000 dirhams (about $6,000) as compensation to the victim while his two accomplices paid 40,000 dirhams (about $4,000) each.
A strict law.. and "tolerant" judges?
The crime of rape in Moroccan law is considered a felony, and its penalty ranges from 5 to 10 years, and from 10 to 20 years when the victim is a minor, and if a person uses a person or a number of people to carry out the assault, the penalty rises from 20 to 30 years. In case the victim's virginity is taken, the penalty becomes 30 years, according to article 488 of the Moroccan Penal Code.
In article 146 of the Moroccan Penal Code, if the court finds that the penalty prescribed for the crime in the law is harsh in relation to the gravity of the acts committed or to the degree of criminality of the accused, it can grant the accused mitigating circumstances, unless there is a legal provision prohibiting this. This is what most judges resort to, according to human rights activist Chakib el-Khayari, and is what the ruling body relied on in the case of the child Sanaa.
In light of varying provisions and rulings, legislators should establish a clearer legal framework for sexual assault cases
In a statement to Raseef22, al-Khayari explained that "the issue of lack of judicial precedents is an indisputable fact and is considered alone a mitigating circumstance, but the court's consideration that the penalty prescribed by the law for the crime was harsh in relation to the seriousness of the acts as a second reason for mitigation, is unacceptable, because taking turns to have sexual intercourse with a minor, and raping her, is considered a serious crime. In this regard, we can say that the court has gone too far in implementing the policy of mitigating circumstances and even in adapting the acts of rape as mere indecent assault for all the accused, while one of the accused must be convicted of the crime of rape."
The human rights activist points out that the problem lies in the legal text, because it allows room for the discretionary power of the judge in a "significant and arbitrary" manner. Some crimes can be punished by the judge with a sentence ranging from 5 to 20 years, which is a huge time range, and a judge can sentence a defendant to five years in one case and to twenty years in another case that is similar in all circumstances. That is why, the legislator, as el-Khayari says, is obliged to intervene legislatively to narrow down the time range of the penalties.
El-Khayari asserts that the crime of rape, due to the fact that it is one of the crimes in which mitigating circumstances can be applied, since the legislator did not exempt it from that, leads to a sentence of imprisonment ranging from two to five years for the accused, and this penalty can be suspended with the obligation to justify the verdict. Therefore, "issuing a verdict this light and lenient, although not fair, is still under the law a 'fair verdict' because it was based on the provisions of the law, which empties the philosophy of punishment of its necessary content, requires a balance between imprisonment and reforming the offender."
Legal reform is the solution
Samira Mohia, president of the Federal League for Women's Rights in Rabat (FLDDF), tells Raseef22 that this reduced sentence came as a shock to her association and to all human rights organizations and actors in Morocco, because it does not match the heinousness and atrocity of the crime committed against the little girl Sanaa, who was repeatedly raped by multiple perpetrators, resulting in the loss of her virginity, pregnancy and subsequent childbirth of the child Rayan (who is now one year and one month old), and that "it was a sentencing against Sanaa, not in her favor, as she was raped several times by the perpetrators, and secondly by the law, which did not do her justice, nor her son, nor her family."
The lenient sentence came as a shock to all human rights organizations and actors in Morocco, as it does not match the heinousness of the crime
The rights defender explains that the reasons why these sentences are so lenient lie in the fact that the Moroccan criminal code today is over sixty years old, and it is "an outdated and unconstitutional law,vthat perpetuates a lot of injustice and oppression in everything related to gender-based violence, rape and the body and dignity of women and girls. Its provisions are backward and are the result of the wide discretionary power of judges."
The human rights activist asserts that this ruling and other previous rulings question the concept of the wide discretionary power that judges have and their interpretation when it comes to gender-based violence, sexual assault or rape, because interpretation always comes in favor of the male-oriented mentality and culture of judges, who produce such sentences that grant offenders mitigating conditions without any consideration for the victims. She says, "The broad discretionary power of judges justifies and normalizes violence, and makes women or girls guilty and responsible for what happens to them. Therefore, we sent a letter to the Minister of Justice to review this criminal code and expedite the issuance of a new law that is appropriate for the times, and we asked him to restrict the discretionary power of judges by text, so that the door of interpretation does not remain open, especially with regard to rape and sexual assault on women, girls and children."
Normalizing with violence
Samira Mohia wonders about the reasons for normalizing with this complex violence that affects women and girls, and for mitigating the sentence for the defendants, taking into account their circumstances and the absence of a previous record, while the situation and circumstances of the child Sanaa, who is a child currently raising a child, were not taken into account. In addition, any protective measures for her and her family were absent from the ruling part in this case, especially since the child was raped by people from her surroundings, and the main defendant's house is adjacent to her house. Medical expertise has proven that there is a biological relationship between one of the defendants and the child Ryan, but, no measures have been taken to determine his paternity, for the child to enjoy all his rights and is protected from further harm and the unknown that awaits him.
The body of a woman is still considered, in the Penal Code, and even in the Moroccan Family Code, the property of the family and others, and a standard of honor and morality, rather than the property of women and girls themselves
For this reason, the head of the Federal League for Women's Rights in Rabat (FLDDF) says that they have written to all responsible authorities, including the Public Prosecution office, to implement the protective measures stipulated in the law for combating violence against women. They have demanded that the punishment be increased for sexual exploitation, assault and rape, and that the rapists are not granted mitigating circumstances. They also demanded that the discretionary power of judges be restricted, that judges be trained in gender-based violence, and that international conventions and a culture of human rights be enforced. She also calls for a change in the perception of the female body, which is still considered, in the Penal Code, and even in the Moroccan Family Code, the property of the family and others, and a standard of honor and morality, rather than the property of women and girls themselves. Because of this, women always find themselves in second place within the family and society and in all fields. Their bodies are open for violation, and any violence or assault on this body leads her to always be questioned about it, and this violence is often justified by the claim that the woman is guilty and she is the one who should be ashamed and must preserve this body because it is the honor of society and the family.