The Criminal Confrontation of the Phenomenon of Marital Rape between Legislation and Judicial Practice in the Moroccan Penal Law: A Comparative Study

Abstract

This research addresses the issue of marital rape, one of the most sensitive topics that has sparked wide legal, social, and jurisprudential debate in Morocco due to its close connection with human rights and women’s dignity within the institution of marriage.
The study adopted a comparative analytical approach, analyzing national and international legal texts, reviewing Moroccan and comparative judicial precedents, and assessing their adequacy in protecting women from sexual coercion within marriage. The findings revealed that the Moroccan Penal Code does not explicitly criminalize marital rape, and this ambiguity has led to divergent judicial interpretations—some excluding the possibility of such a crime within marriage, viewing marital relations as granting the right to intercourse, while others consider it a crime whenever consent is absent, based on constitutional principles and international conventions that guarantee women’s physical and psychological integrity.
The research also demonstrated that the Law on Combating Violence against Women (2018) did not explicitly address this issue, thereby maintaining the existing legislative gap. In contrast, several comparative legal systems, such as French and Canadian law, have taken a clear stance by criminalizing marital rape.
It becomes evident that the Moroccan legislator has refrained from regulating marital rape due to the difficulty of codifying and criminalizing this phenomenon with precise legal provisions, as it may be perceived as a potential threat to the stability of Moroccan family life. Consequently, the study recommends amending the Penal Code to clarify the legal position on the matter, enhancing judicial training in handling domestic violence cases, raising public awareness about the concept of consent and mutual respect in marital relations, and providing psychological and legal support for victims.