(Rabat) – Ten-month prison sentences for a man and a woman for adultery, confirmed on appeal on May 27, 2015, are the disturbing outcome of a Moroccan adultery law that violates basic rights and a prosecution that appears politically-motivated. The case is the latest in a pattern of trials in Morocco with a political hue that fall short of due process and fair trial standards.
The appeals chamber of the Rabat Court of First Instance confirmed the verdict and sentence that the same court pronounced on March 30 against Hicham Mansouri, 34, who works for an organization supporting investigative journalism, for complicity in adultery and his co-defendant, a 30 year-old-woman, for adultery. The court had discounted substantial evidence that emerged during the trial that cast doubt on the police version of the “crime.” The court ordered the defendants to pay a total of 40,000 dirhams (US$4,140) in damages to the woman’s husband.
“The conviction of Mansouri and his co-defendant is a depressing example of so much that is wrong with Morocco’s criminal justice system,” said Sarah Leah Whitson, Middle East and North Africa director. “In addition to the unfairness and political motivation at issue in the Mansouri case, it also highlights Morocco’s problematic criminalization of adultery.”
The defendants have not indicated whether they intend to appeal to the Court of Cassation, the last judicial appeal available to them. The appeals court has not yet released its written decision explaining its reasoning.
Morocco should decriminalize adultery, a step that would be consistent with its obligation to protect the right to privacy in its 2011 constitution and international human rights law. It should also ensure the right of defendants to fair trials so that courts don’t inherently give more weight to police accounts of events than to exculpatory evidence presented by the defendants, Human Rights Watch said.
Morocco’s penal code, article 491, provides for a prison term of between one and two years for adultery. It states that adultery can be prosecuted only if the spouse of one of the parties files a complaint. In this case, the husband filed a complaint to trigger the prosecution, but only after the police had informed him that they had caught his wife in the act.
The police handling of the case, including their long-term surveillance of Mansouri, suggests that motives other than the neutral enforcement of adultery laws may have driven his arrest and prosecution, Human Rights Watch said. Mansouri works for the Moroccan Association for Investigative Journalism, a small group whose president, Professor Maati Monjib, has stirred controversy by directly criticizing the palace. Monjib has co-founded other associations such as Freedom Now, a freedom-of-expression group that authorities have refused to recognize and whose public activities the police have prevented.
The court based its verdict on a written account of events from the police and the woman’s contested confession to the police, which she repudiated. The defense presented ample evidence to challenge the police version of events.
Human Rights Watch has analyzed numerous trials in which Moroccan courts reached guilty verdicts without affording defendants their right to a fair trial.
Relying on incriminating written statements prepared by the police, by witnesses, or complainants without requiring them to testify in court, where the defendants or their representatives could challenge them, also violates the defendant’s rights. This commonly occurs in cases involving prison terms of less than five years. Under article 290 of the Code of Penal Procedure, “Reports or statements prepared by the judicial police in cases of misdemeanors and infractions are to be deemed credible unless the opposite is proven.” Human Rights Watch has long urged the suppression of this provision, which denies “equality of arms” to both sides in the case.
Mansouri is not the only Moroccan with a political profile recently arrested for alleged adultery. On March 13, police in Casablanca detained El-Mostafa Erriq, a leading member of the Islamist opposition Justice and Spirituality (Adl wa’l Ihsan) movement, and a woman he was visiting. Police held Erriq and the woman for three days and notified Erriq’s wife, but released them when she declined to file a complaint.
Erriq, like Mansouri, claims that the police set him up and fabricated the evidence of adultery, including forcibly undressing and photographing him at the scene.
In both cases, the police did not arrest the accused on the basis of a complaint filed by a spouse. Instead, the police contended that they caught the couple in the act and invited the spouse to file a complaint. Both cases also highlight the intrusive nature of police investigations into alleged adultery offences. The criminalization of consensual sexual relationships between adults, regardless of their marital status, violates the right to privacy, Human Rights Watch said.
The Justice Ministry, headed by Moustapha Ramid of the Islamist Justice and Development Party (PJD), on March 31 issued a draft revision of the penal code that would increase the penalty for adultery, by adding a fine in addition to a prison term. The Moroccan government does not publish statistics on the number of prosecutions for adultery, to our knowledge.
“Those in Morocco who support the criminalization of adultery should consider what it means,” Whitson said. “Do Moroccans really want to live in a country where the police monitor people’s phones and follow them, burst into their homes, seize objects and send them for forensic testing – all in the name of combatting infidelity?”
The Mansouri Case
According to its written judgment, the Rabat Court of First Instance, with judge Abdenebbi Rakik presiding, based its verdict in the trial on two elements: the police account of catching the defendants “en flagrant délit” (in the act of committing adultery, a crime); and the confession the police said the woman had made, when she did not have the assistance of a lawyer. At their trial, both defendants disputed the police account of their arrests. The woman retracted her “confession” both before the prosecutor and at trial.
The woman, a mother of two, has not been named in media accounts. While she gave her consent for Human Rights Watch to use her name, her name is not used in this account out of concern about a possible negative impact on her private and family life and because, unlike Mansouri, she lacks a group that is mobilized to defend her interests.
The court convicted the woman under Penal Code article 491. Mansouri could not be charged with adultery as he is unmarried, but was convicted of complicity in adultery, under article 129. The court acquitted him of the charge of facilitating prostitution, under article 498.
The police report in the case file says the police placed Mansouri under surveillance in January in response to allegations from unnamed neighbors and Mohamed el-Ghabaoui, a doorman at his apartment building in the Agdal neighborhood of Rabat, accusing Mansouri of using his apartment for prostitution.
The police report states that officers waited for about 30 minutes after they observed a woman enter Mansouri’s building at 9:30 a.m. on March 17, then went upstairs and knocked at the door of apartment 20. The woman opened the door wearing a “see-through” garment, the report says, and officers entered the bedroom and found Mansouri lying half-naked on the bed. The report says that the officers then arrested both defendants, collected what they considered to be physical evidence of the crime, and took the two suspects to a police station. There, the woman signed a statement incriminating herself and Mansouri, while the latter gave a statement denying adultery.
A statement issued by the Rabat Police Department on March 19 said that the arrest “was carried out in complete respect of the law governing home searches, and after informing the two suspects of their rights.”
Human Rights Watch observed the appeals trial on May 20.
At the first trial, and in a written account that Mansouri wrote from prison for his lawyer, he said the police forced open the door, and forcibly undressed and photographed him. The woman, both before the prosecutor and at trial, denied having an adulterous relationship with Mansouri and said she signed the confession under police pressure.
Mansouri’s brother, the building doorman, and a notary the brother brought to take a statement described damage to the apartment door consistent with it being forced open.
At their trial, both defendants challenged the police account, and other witnesses disputed aspects of it. Mansouri said that there was a knock on his front door and then the door was forced open and about 10 men invaded the apartment, forced him to the ground, and removed his clothing. According to a detailed written account that Mansouri provided to his lawyer, the police photographed him and the woman, then escorted them to the street, with Mansouri wearing only a towel.
Both before the prosecutor on March 19 and at both trials, the woman repudiated the statement attributed to her by the police, in which she confessed in graphic and explicit detail to an adulterous relationship with Mansouri. She told the court that she had signed the statement because the police had told her that if she did, they would release her so she could be with her children.
She said she and Mansouri were dressed normally when the police burst in. She said the two are merely friends and denied having had sex with him. At the appeals trial, she said that the police photographed each of them and forcibly undressed Mansouri. The case file contains no photographs.
Despite the differing accounts, the court relied on the woman’s initial confession and the written police report to convict them. No police agent testified at the trial.
The police report notes that they seized “wet Kleenexes” from the bedroom and submitted them to the police forensics lab for DNA analysis. However, Mansouri denied that this evidence came from his apartment and, at the appeals trial more than two months later, the prosecution had no lab results to present in court. The file also contains phone records that the prosecution obtained from Maroc Telecom in order to show the timing and frequency of phone communications between the two defendants prior to arrest.
In court, Mansouri contested the police claim that his co-defendant had opened the apartment door in response to their knocking, asserting that the officers broke both the front door and then a second door between rooms in the apartment. Mansouri’s brother, Khaled, told the court that he observed the smashed-in door to his brother’s apartment when he went to the building soon after the event. He then brought a notary who completed a written witness account stating that both the front door and an inner door of the apartment had been broken. El-Ghabaoui, the doorman, also told the court he found the apartment door broken after the police left the premises.
The police were able to stake out and then raid Mansouri’s apartment because they were, formally, at least, investigating Mansouri for using his apartment for prostitution. However the prostitution accusation turned out to be based on dubious evidence. In court, the doorman, el-Ghabaoui, denied having ever complained to the police about Mansouri. A large number of building residents signed a statement saying Mansouri was an exemplary neighbor about whom they had never complained.
The prosecutor largely ignored the prostitution charge at trial, and the court acquitted Mansouri of it.
In the written account that Mansouri gave to his lawyers from prison, he says he had lived in fear since being assaulted on the evening of September 24, 2014. The complaint he filed with the police says that shortly after he had left the company of Maati Monjib, two men emerged from a car with tinted windows and assaulted him outside Rabat’s Agdal train station. The men, who took nothing from him, got back into the vehicle, which a third man drove away, Mansouri said. The police conducted an investigation, but closed it for lack of evidence, Abdelaziz Nouaydi, Mansouri’s lawyer, told Human Rights Watch. (Nouaydi is also a member of the Human Rights Watch Middle East and North Africa division advisory committee.)
Mansouri and his co-defendant are both serving their sentences in Sale Prison. The court did not grant them pretrial release.
Erriq, 44, told Human Rights Watch that he travelled to Casablanca on March 13 to attend a funeral and made an appointment to see a woman colleague that evening at an address that she gave him in the Ain Sbaa area. He said that as he parked his car at about 7 p.m. three men got out of another car and approached him:
One of the men asked if I was Erriq. Then 20 men, in plainclothes, emerged and forced me into the building. They broke open the door of the apartment. The woman I was to meet was in there, by herself. They stripped and handcuffed me. Then they forced the woman to undress down to her underclothes. They were arguing with each other how much of her clothing they should remove. The apartment is not fully furnished, so they moved couches together to form a kind of bed, put us on them, and took photos of us and told us they would release the photos.
After about 20 minutes in the apartment they transported us to police headquarters in Ma’arif, in Casablanca. The police questioned me there numerous times, mainly about Justice and Spirituality, and its political views. There were insults, but no one beat me.
The prosecutor called my wife, urging her to come and file a complaint against me for adultery. She refused. The prosecutor on the 15th ordered an extension of my garde à vue detention but when they were unable to get her to file a complaint, they released me and the woman on the 16th.
Erriq told Human Rights Watch that the police confiscated his valuables at the time of his arrest but later returned everything to him except for his cellphone. They told him he would have to formally request it, he said.
The Casablanca Police Department, according to a press report, stated following Erriq’s release that he may still face charges, noting, “The office of the prosecutor has asked to broaden the investigation, to contact the spouse of the accused again and to speed up the examination of both the cellphones of the suspects in light of the text messages they exchanged, and of the undergarments seized in the case.”
Erriq told Human Rights Watch that authorities had not contacted him since his release in relation to a possible case against him. Justice Minister Ramid, commenting on the case, invited Erriq to file a complaint, which would trigger an investigation. A Justice and Spirituality movement spokesman, Hassan Bennajeh, responded that “Even if the movement wanted to file a complaint, the justice system still lacks the independence needed to handle this case.”
Erriq lives with his wife and two children in el-Jadida, where he works in teacher training. The woman accused in the case is not a member of Justice and Spirituality, Erriq said.
Proposed Increased Penalties for Adultery
The Justice Ministry has proposed amendments to the penal code to increase the penalties for adultery by imposing a fine of between 2,000 and 20,000 DH (US$207 – 2,070) in addition to a prison term. The draft code also retains the current penalty, under article 490, for sex between unmarried partners, of between one month and one year in prison.
The proposed code also maintains the reduction of sentences in the existing code for spouses who kill or injure their husband or wife surprised in the act of adultery. Justice Minister Ramid and Abdelillah Benkirane, the head of government, also of the PJD, have publicly defended the maintenance of such “honor crime” provisions in the penal code.
Criminalization of Adultery Violates Human Rights
The criminalization of consensual sexual relationships between adults, regardless of their marital status, violates the right to privacy under the International Covenant on Civil and Political Rights (ICCPR), which Morocco has ratified. ICCPR article 17 provides, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” The UN Human Rights Committee, the expert body that interprets the ICCPR, has held, “Inasmuch as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy.’”
Moreover, laws criminalizing consensual sex disproportionately impact women. A rape victim will be less likely to file a complaint if the failure to win a conviction puts her at risk of prosecution for adultery, complicity in adultery, or sex outside marriage.
The United Nations Working Group on Discrimination against Women in Law and in Practice, which is tasked with identifying good practice on the elimination of laws that discriminate against women, stated in 2012 that adultery “should not be a criminal offence and must not be punishable by fine, imprisonment, flogging, or death by stoning or hanging,” and noted its often disproportionate impact on women.