Morocco: Letter on Bill 103-13 Combatting Violence Against Women

October 28, 2016

Re: Bill 103-13 combatting violence against women

Dear Mr Hakim Benchamas,

We write concerning the revised bill on combatting violence against women (Bill 103-13), which the government adopted on March 17, 2016, and the House of Representatives passed on July 20, 2016. While this is an important step toward women’s equality and freedom from violence, we have a number of outstanding concerns regarding the revised bill, in particular with respect to provisions on domestic violence. Before it is enacted, we urge you to strengthen the bill to better prevent domestic violence, protect survivors, and hold abusers accountable.

Several countries or autonomous regions in the Middle East and North Africa region have introduced some form of domestic violence legislation or regulation, including Algeria, Bahrain, Iraqi Kurdistan, Israel, Jordan, Lebanon, and Saudi Arabia. These laws vary in the degree to which they comply with international standards. Morocco could be a regional leader in combatting domestic violence by ensuring that its legislation is comprehensive and in line with international standards.

We wrote to Her Excellency Bassima Hakkaoui, then-Minister for Solidarity, Women, Family and Social Development, and His Excellency Moustapha Ramid, then-Minister of Justice and Freedoms, on February 16, 2016, concerning several legal reform processes relating to violence against women, including the 2013 bill on combatting violence against women (hereafter, the original draft), the 2015 bill proposing reforms to the penal code (hereafter, the draft penal code), and a 2015 bill concerning changes to the criminal procedure code (hereafter, the draft code of criminal procedure).[1] After this time, a revised bill was introduced (hereafter, the revised violence against women bill or the revised bill). We reviewed the revised violence bill, and remain concerned about many of the issues addressed in our February letter. 

As the bill stands before the House of Councillors, we call on you to relay our concerns to members of the House, and support efforts to amend the revised violence against women bill in accordance with international standards.

The commentary below addresses the essential elements for domestic violence legal reforms in Morocco. It is further informed by interviews we conducted in Morocco in 2015 with 20 women and girls who have experienced domestic violence, and 25 interviews with lawyers, women’s rights activists, representatives of nongovernmental organizations (NGOs) serving domestic violence survivors, social workers, and representatives of UN agencies.

Thank you for your time and attention to this letter. We would greatly appreciate the opportunity to discuss this with you, and remain at your disposal to set up such a meeting. We hope that we can work together to promote women’s safety and rights.

Sincerely,

Janet Walsh
Acting Director
Women’s Rights Division
Human Rights Watch

Essential Elements for Domestic Violence Legal Reforms in Morocco

The UN established key elements for legislation on violence against women, including domestic violence, in its 2012 “Handbook for Legislation on Violence against Women” (UN Handbook).[1] We view the following as essential elements for domestic violence legislation in Morocco:

• Definition and scope of application of domestic violence crimes
• Prevention measures
• Law enforcement and public prosecution responsibilities
• Justice system responsibilities
• Orders for protection
• Other services and assistance for survivors

1. Definition and Scope of Application of Domestic Violence Crimes

The revised violence against women bill defines the broad category of “violence against women” to mean “any act based on gender discrimination that entails physical, psychological, sexual, or economic harm to a woman.”[2] We are glad to see that the House of Representatives re-introduced into the draft the definitions for physical, sexual, psychological, and economic violence. However, we remain concerned that there is still no definition of “domestic violence” in the revised bill.

We recommend that the violence against women bill include a clear, comprehensive definition of domestic violence, in line with UN recommendations.[3]

We also recommend that the definitions of psychological and economic violence be revised in line with the UN standards that  focus on “coercive control,” i.e., how such violence links to a pattern of domination through intimidation, isolation, degradation, and deprivation, as well as physical assault.[4] The UN Office on Drugs and Crime (UNODC) recommends that laws define “psychological violence” as controlling, coercive or threatening behavior or intentional conduct seriously impairing a person’s psychological integrity through coercion or threats.[5]

The revised violence against women bill includes amendments to the penal code. They provide for additional penalties if the person convicted of specific crimes (such as abduction, facilitating suicide, or threats of aggression) is a spouse, fiancé, guardian, ascendant, descendant, divorced from the victim, or a person with custody or authority over the victim.[6] The revised bill removed the provision that increased penalties for assault, which was in the original draft.[7]

The revised bill also introduces new crimes, similar to the original draft, such as forced marriage, squandering money or property to circumvent payment of maintenance or other dues arising from a divorce, and expelling or preventing a spouse from returning home.[8]

We are pleased to note that a number of these provisions have been amended by the House of Representatives to include former spouses and fiancés within the scope of application. However, we still recommend that non-married intimate partners be included even if they are not engaged to marry.[9] The UN Handbook recommends that laws on domestic violence apply to “individuals who are or have been in an intimate relationship, including marital, non-marital, same sex and non-cohabiting relationships; individuals with family relationships to one another; and members of the same household.”[10]

For instance, a 20-year-old woman from Oujda with a young daughter told Human Rights Watch that she became pregnant after her cousin raped her three years ago.[11] Her family rejected her and so she lived with him but he did not marry her. She said he continued to beat and rape her during this time, and at times locked her in the house to prevent her from running away.

The revised bill is too limited in terms of which crimes against spouses or family members could result in penalties, for example by leaving out marital rape. The UN recommends that laws explicitly state that sexual violence against an intimate partner (often referred to as “marital rape”) is considered a form of domestic violence.[12] This should be added to the revised bill.

An 18-year-old woman told Human Rights Watch that her husband raped her repeatedly. “He forced me [to have sex], even if I refused.”[13]

We recommend:

• The violence against women bill should define “domestic violence” to include physical, sexual, psychological, and economic violence, in line with UN recommendations. The bill should also further define “psychological violence” as controlling, coercive or threatening behavior or intentional conduct seriously impairing a person’s psychological integrity through coercion or threats. The bill should state that sexual violence against an intimate partner (marital rape) is a crime.
• The violence against women bill should also expand the scope of application of domestic violence crimes. It should, under certain circumstances, include: individuals who are or have been in an intimate relationship, such as marital, non-marital, same sex, and non-cohabiting relationships; individuals with family relationships to one another; and members of the same household.

2. Prevention Measures

The revised violence against women bill still does not directly mention prevention. The bill retains the call for national, regional, and local committees on women and children, but does not refer to their role in violence prevention.[14] The UN recommends that legislation on violence against women address prevention.[15]

We recommend:

• The draft violence against women bill should include a section on prevention of domestic violence. It should assign responsibilities to government agencies to carry out prevention measures, including awareness-raising activities, development of educational curricula, and sensitizing the media regarding domestic violence.

3. Law Enforcement and Public Prosecution Responsibilities

The revised violence against women bill still does not establish concrete duties for police, prosecutors, and other law enforcement and judicial officials, as recommended by the UN. Moreover, existing laws in Morocco do not provide adequate guidance to police, prosecutors, or investigative judges about their duties in domestic violence cases.

Women survivors of domestic violence told Human Rights Watch about instances in which police did little or nothing when they tried to report domestic violence. They said police told them to go back to abusive partners, said they could do nothing without eye-witnesses, or told them to go to a prosecutor without taking further action. Women who reported complaints to prosecutors said the prosecutors told them to deliver a document back to the police instructing them to investigate, rather than the prosecutors communicating directly with the police. But even after delivering such documents, most of the women said police either did not act on the orders, or just phoned the abusers. Domestic violence survivors, except one woman, who spoke to Human Rights Watch said that the police neither provided nor paid for transport to medical services or the public prosecutor. Several women and girls said that they felt they could not go to the prosecutor because they had no money for transport, and feared they could not lodge a complaint without identification documents, which were with their abusers.

Other women also said that the police did not conduct further investigations, such as going to the scene of the crime to take evidence or interviewing neighbors who may have witnessed or heard the violence.

We recommend:

• The draft violence against women bill should address police duties in cases of domestic violence, including granting adequate powers to enter premises and conduct arrests; carrying out risk assessments; interviewing the parties and witnesses; recording the complaint; advising the complainant of her rights; filing an official report; arranging for transport for medical treatment; and providing other protection. 
• The bill should direct relevant Ministries to adopt “pro-arrest” and “pro-prosecution” policies in cases of domestic violence when there is probable cause to believe a crime has occurred, in line with UN guidance.
• The bill should require that police and public prosecutors (or investigative judges, as relevant) coordinate on domestic violence cases and directly communicate between offices. Authorities should not require that domestic violence survivors deliver instructions between offices.
• The bill should make clear that the responsibility for prosecuting domestic violence lies with prosecution authorities, not with survivors, and set minimum standards for what prosecutors must communicate to survivors.

4. Justice System Responsibilities

The revised violence against women bill removed a provision from the original draft which clarified what evidence courts could consider in domestic violence cases. The original draft specified that courts could consider reports of psychologists, medical evidence, expert statements, photographs, audio and visual recordings, and the victim’s statements in hospital records.[16] Removing this provision is a step backwards. The bill should ensure that all forms of evidence should be considered, and it should further specify that a victim’s testimony in court may be sufficient evidence to reach a conviction.[17]

This is particularly important as, according to lawyers who spoke to Human Rights Watch, prosecutions and convictions under the penal code for crimes related to domestic violence (e.g., assault) are exceedingly rare.[18] Lawyers who have worked on such cases said the judges have been inconsistent or unreasonable about what evidence they consider sufficient for a conviction. For example, one lawyer told Human Rights Watch that she has seen judges require domestic violence victims to produce eye-witnesses even when they have a medical report and the survivor’s own testimony.[19] Since these attacks tend to happen in homes behind closed doors, often there are no witnesses other than children, who typically cannot testify. While the standard should not be that victim testimony is always sufficient on its own for a conviction, it should be possible for courts to convict on the basis of credible victim testimony, consistent with due process standards under international human rights law and with the evidentiary threshold required under Moroccan law to reach a guilty verdict.

The revised violence against women bill also does not deal with the current focus in the law on incapacitation as a definitive criterion for sentencing. Morocco’s penal code currently provides for sentencing in assault cases based on incapacitation from physical injuries. If an assault causes no injuries or injuries that incapacitate the victim for up to 20 days, the offender can be sentenced to one month to one-year imprisonment and/or a fine.[20] When incapacitation lasts more than 20 days, the penalty increases to one to three years’ imprisonment and a fine.[21] The penalties further increase in cases resulting in loss of limb, bodily function, blindness, or permanent disability.[22]

The draft penal code amendments would make slight changes to sentencing rules related to incapacitation, referring to 21 days rather than 20, and decreasing the possible length of imprisonment penalties.[23]

The focus in the law on incapacitation as a definitive criterion for sentencing has been problematic in several respects. The law says nothing about grounds for determining the period of incapacitation. This lack of guidance leaves doctors with wide discretion and potentially arbitrary influence over sentencing in criminal cases. The approach also ignores the reality that domestic violence often results in cumulative smaller physical injuries, which may last fewer than 20 days, or other non-physical or less-visible harm.[24] Morocco’s National Human Rights Council has complained that there is no national framework for determining the duration of incapacity.[25]

Despite these problems, the incapacitation standard affects cases even beyond sentencing. Several lawyers and activists told Human Rights Watch that it also impacts arrest practices. One lawyer, for example, explained that judges may issue an order for arrest where victims have medical certificates indicating 21 days or more of incapacitation from domestic abuse, and the public prosecution may issue an arrest warrant if they believe the survivor is at risk of extreme violence.[26] The lawyer said that she has only seen arrests when clients lost an eye or teeth, or became disabled from domestic violence. Of the 20 survivors Human Rights Watch interviewed, only one said that her abuser was arrested. She had a medical report indicating 21 days of incapacitation after her husband punched her and broke her nose while she was pregnant.[27]

We recommend:

• The violence against women bill should include the original draft provision on types of evidence that are admissible in court proceedings, but also state that a complainant’s testimony may be sufficient evidence for a conviction. The draft criminal procedure code should have a parallel provision for assault crimes, including in the context of domestic violence.
• While severity of injury, as determined by doctors, should be one factor courts can consider in determining sentences for those convicted of crimes, the violence against women bill should de-emphasize incapacitation as the definitive factor. Other factors should reflect UNODC guidance on sentencing, including history of abuse, risk of repeat offending, rehabilitation needs, and aggravating factors.
• The violence against women bill should call for official protocols for forensic examinations in domestic violence cases. It should clarify that police are empowered to arrest regardless of whether a complainant has a medical certificate indicating incapacitation.

5. Orders for Protection

In many countries, domestic violence survivors can access emergency or longer-term “orders for protection” through civil or criminal law measures, or both. UN Women describes protection orders as “among the most effective legal remedies available to complainants/survivors of violence against women.”[28] The UN Handbook notes that the purpose of a protection orders is to prevent further violence and protect the victim. It recommends that domestic violence survivors should be able to seek such orders without pursuing other legal proceedings, such as criminal charges or divorce.[29]

The revised violence against women bill introduces two new provisions with variations on orders for protection. These provisions would allow courts to issue protection orders only during a criminal prosecution or after a criminal conviction. Neither of these would help a domestic violence survivor get immediate, effective protection independent of a criminal case. Beyond these orders, the bill provides for only mild measures such as a “warning” to perpetrators that they should stop committing violence, with no penalties for breach of the warning. The original bill was far stronger on protection measures.      

In terms of protection orders after a conviction, the revised bill provides that courts can issue these in cases involving harassment, assault, sexual abuse, mistreatment or violence against women or minors. The order may prohibit the convicted individual from contacting, approaching, or communicating with the victim.[30] If the defendant breaches the order, he can face imprisonment or fines.[31]

The article on protection orders during prosecution of a case on violence against women provides that the prosecutor or investigative judge can prohibit the defendant from contacting, approaching, or communicating with the victim. The order is effective until a court has issued its final decision, and breach of the order can result in penalties.[32]

The revised bill introduces a watered-down article on “protective measures” available in cases of violence against women, presumably regardless of a conviction or pending prosecution. Without clarifying which authorities are responsible to act, it provides that “immediate” protective measures should include “warning the perpetrator not to commit any violence if the perpetrator threatened to do so,” and “informing the perpetrator that he is prohibited from disposing the joint spousal funds.” This article also refers to child custody and referrals to shelters, hospitals, or social care institutions.[33] If a protection measure is breached, the offender would face one to three months’ imprisonment or a fine.[34] 

This provision left out many important protections from the original bill.  The original bill provided for protective measures independent of criminal prosecution or conviction, and included penalties for breach of protective measures. It provided that protective measures could include disarming the assailant; removing the accused from the marital abode; prohibiting contact with the victim or the children; and prohibiting the accused from approaching the victim or her place of residence, work, or study; among others. While the original bill’s language on protective measures needed further clarification (as explained in our February letter), it came far closer to international standards.

The bill should allow for “civil” protection orders, which would be available without any criminal proceedings, rather than embedding this only within the criminal procedure code. It should also distinguish between emergency (short-term) protection orders and longer-term orders.

Short-term emergency orders respond to situations of immediate danger, often by putting distance between the abuser and the victim without placing the burden on victims to seek shelter and safety elsewhere, instructing the respondent (the suspected perpetrator) to vacate the family home for a limited time is appropriate. Laws designate competent authorities to issue such orders. These often expire after several weeks.

Longer-term protection orders are typically issued by courts after notice to the respondent and an opportunity for a full hearing and a review of evidence. In many counties, these orders expire after several months, but the UN recommends that they be valid for one year.[35]

The UN calls for such distinction, including time limits for both.[36] The bill should explain that emergency orders can be issued without evidence beyond a victim’s statement, whereas longer-term orders should require a full hearing and review of all evidence.[37] It should clarify which authorities can issue orders for protection, whilst ensuring protection of rights, including due process.

We recommend:

• The draft violence against women bill should be amended to address emergency and longer-term orders, clarify the restrictions or conditions they can impose, and explain the procedures for both types of orders. In line with the UN Handbook, it should allow for orders for protection in both civil and criminal proceedings, and without the requirement that for such orders there has to be either a criminal prosecution or divorce proceedings. 

6. Other Services and Assistance for Survivors

States have a human rights obligation to ensure that domestic violence survivors have timely access to shelter, health services, legal advice, hotlines, and other forms of support.[38]

However, in Morocco, shelters are only operated by NGOs, and only a few shelters receive some government funding. Human Rights Watch knows of fewer than 10 shelters in the country that accept domestic violence survivors, and even these have limited capacity. Representatives of shelters and women’s rights organizations told Human Rights Watch that many domestic violence survivors who came to them have returned to abusive partners because they had no means to support or house themselves.

The revised violence against women bill maintains the original draft provisions on specialized units in courts of first instance and appeal, as well as in agencies tasked with justice, health, youth, women, and children, and in the General Directorate for National Security and the Royal Gendarmerie. [39] It also calls for local, regional, and national committees to coordinate on issues of women and children.[40]

While these provisions are positive, the bill should also include measures for training staff, monitoring the units, and holding authorities accountable if they fail to carry out their duties. This is particularly important given the problems we noted in our February letter about existing assistance programs.

Women’s rights activists and lawyers told Human Rights Watch that some of the promised units or cells were never established, and some that exist are bureaucratic and ineffective. One NGO report noted that they are limited to completing paperwork rather than providing information, services, or protection to women victims of violence.[41] Even a government official has publicly critiqued some of these units. The deputy public prosecutor in the Court of First Instance in Azilal noted that judicial cells for women and children lack clarity on their mandate, and have human resource problems and poor coordination.[42]

In 2012, the Health Ministry said that it had set up 76 units in hospitals for women and child victims of violence, but only 23 were active at the time.[43] According to UNICEF, doctors have not consistently referred women to these units.[44]

We recommend:

• The violence against women bill should more clearly define the government’s role in providing support and services to domestic violence survivors, including in terms of shelter, health services, psychosocial care, legal advice, and hotlines.
• The bill should establish a trust fund or other financial assistance for domestic violence survivors.
• The bill should maintain the provisions on coordination and on specialized units in government agencies to handle violence against women and children. It should add provisions on training staff, monitoring effectiveness, and accountability for these units.