Appeals Court Applies Law Criminalizing Same-Sex Activities
(Rabat) – A Moroccan appeals court on July 2, 2014, upheld the convictions of men accused of homosexual acts. At least four of the six defendants in the case in central Morocco were convicted on charges that included “lewd or unnatural acts with an individual of the same sex,” under penal code article 489.
Besides charges that discriminate based on sexual orientation, the case may raise fair trial concerns, Human Rights Watch said. The appeals court in the city of Beni Mellal upheld the conviction of the men solely on the basis of statements that they made while in police custody. All six had repudiated those statements at the trial, asserting they had only signed them because of police threats, one of the defense lawyers, Hadda Maidar, told Human Rights Watch. The court called no witnesses and reviewed no other evidence, and all of the defendants denied in court that they were homosexual, she said.
“Moroccan authorities should stop prosecuting and jailing people for their intimate behavior with other consenting adults,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Whatever the sexual orientation of these six defendants, they shouldn’t face criminal penalties because of it.”
Details of the case have been difficult to obtain, owing to the remoteness of the region where it took place and the reticence of many people connected to criminal cases involving homosexual activity to discuss them publicly.
Police arrested the men in April in Fqih Bensalah, a small inland city 200 kilometers south of Rabat. On May 12, the court of first instance in Fqih Bensalah convicted the men of homosexual acts, along with incitement to prostitution, and public drunkenness or driving under the influence. It sentenced one of the men to three years in prison, another to two-and-a-half years, and the other four to shorter sentences. The court also banished several and perhaps all six defendants from the region, a punishment that article 504 of the penal code provides for “moral” crimes. In its July 2 ruling, the appeals court shortened the two prison terms for two defendants, converted the others to suspended sentences, and cancelled the banishment orders.
Two defendants sentenced to prison time are in the Rural Prison of Fqih Bensalah.
One of the defendants told the court that, while intoxicated, he allowed into his car a person he believed to be a woman but who, in fact, was a man, Maidar told Human Rights Watch. Except for this admission, the defendants maintained their innocence to all of the charges.
Whether or not the other charges in this case have merit, and whether or not the men received a fair trial, the Moroccan government should stop prosecuting people for homosexuality, Human Rights Watch said.
Article 489 of the penal code punishes homosexual acts with six months to three years in prison and a fine of 200 to 1,000 dirhams (US$24 to $120).
In 2007, a court in the northern city of Ksar el-Kbir sentenced six men to prison under article 489. The police arrested them after a video appeared on YouTube purporting to show a private party, at which the defendants were allegedly present, that the media described as a “gay wedding.”
Criminalizing consensual, adult homosexual conduct violates fundamental human rights protected under international law. The International Covenant on Civil and Political Rights (ICCPR), which Morocco ratified in 1979, prohibits interference with the right to privacy. The United Nations Human Rights Committee has condemned laws against consensual homosexual conduct as violations of the ICCPR. The UN Working Group on Arbitrary Detention has held that arrests for consensual homosexual conduct are, by definition, human rights violations.
Morocco’s 2011 constitution, in its preamble, states that Morocco “commits to banning and combatting all discrimination toward anyone, because of gender, color, beliefs, culture, social or regional origin, language, handicap, or whatever personal circumstance.”
“If Morocco aspires to be a regional leader on human rights, it should take the step of abolishing its laws that discriminate against private activity between consenting adults because they are of the same sex.” Whitson said.