Men prosecuted for homosexuality in Tunisia
March 29, Tunis: Tunisia’s law criminalizing consensual same-sex conduct among adults is discriminatory and invites abuse by the police of gay men and men perceived to be homosexual.
Tunisia prosecuted at least seven men for consensual same-sex conduct in two prominent cases over the last six months. All of the men were convicted under article 230 of the penal code, which criminalizes “sodomy” with up to three years in prison. Human Rights Watch interviewed five men who had been sentenced. All of them said that police had subjected them to grave human rights abuses, including beatings, forced anal examinations, and routine humiliating treatment.
“The Tunisian government has no business intruding on people’s private sexual behavior and brutalizing and humiliating them under the pretext of enforcing a discriminatory law,” said Amna Guellali, Tunisia director. “Tunisia should remove such archaic laws from its books, and the police who mistreated these men should be held accountable.”
The government should take steps to repeal article 230 of the penal code and issue a directive ordering an immediate end to anal examinations as part of police investigative procedures to determine a person’s sexual behavior, Human Rights Watch said. It should also investigate reports of ill-treatment, including by establishing a confidential complaint mechanism for all cases of abuse by police officers.
Police arrested “Marwen,” a 22-year-old student whose name has been changed for his protection, in Sousse, 120 kilometers from Tunis, in September 2015. The first instance tribunal in Sousse sentenced him to one year in prison for sodomy, in part on the basis of a medical report from a seriously flawed anal examination.
In another case documented by Human Rights Watch, the police arrested six students in the city of Kairouan, 166 kilometers from Tunis, in their student housing apartment in December, on sodomy charges, and subjected them to anal testing. On December 10, the first instance tribunal in Kairouan sentenced them to three years in prison and ordered them banished from Kairouan for an additional three years.
In both cases, the Sousse Court of Appeal reduced the sentence – to two months in the first case, and one month in the second. But the men retain criminal convictions on their records and had already served their time in jail.
Human Rights Watch interviewed four of the six students from Kairouan separately, after their provisional release from prison pending their appeal hearing. Human Rights Watch also interviewed Marwen, who was released after two months. Human Rights Watch also interviewed their lawyers, three activists from associations concerned with the rights of sexual minorities, and a forensic doctor familiar with the use of anal examinations in Tunisia. Human Rights Watch also analyzed the court documents, the police investigative reports, and the forensic anal examination reports in the five cases.
From the moment of their arrest to the time they were released, these young men described multiple abuses at the hands of the police, including humiliating and demeaning remarks on their alleged homosexuality and beatings at police stations and in prison.
They also described how the forensic doctors in public hospitals subjected them to anal examinations, with the purported objective of finding “proof” of homosexual conduct. According to Physicians for Human Rights, anal exams have no medical or scientific value in determining whether consensual anal sex has taken place. Additionally, they constitute a form of torture or cruel, degrading, and inhuman treatment, prohibited under the Convention against Torture, the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples’ Rights.
The five men told Human Rights Watch that the beatings, humiliation, and anal testing traumatized them and at least four said that their families and communities had rejected them. “Physical pain goes away, but the psychological and emotional pain does not go away,” one student said, describing what he experienced.
Prosecutions for consensual sex in private between adults violate the rights to privacy and nondiscrimination guaranteed by the ICCPR, to which Tunisia is a party. The United Nations Human Rights Committee, which monitors compliance with the covenant, has made clear on several occasions that sexual orientation is a status protected against discrimination under these provisions. The UN Working Group on Arbitrary Detention has found that arrests for same-sex conduct between consenting adults are, by definition, arbitrary.
These rights are reflected in Tunisia’s 2014 constitution. Article 24 obligates the government to protect the rights to privacy and the inviolability of the home. Article 21 provides that, “All citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination.” Article 23 prohibits “mental and physical torture.”
Tunisian activists who have publicly condemned these prosecutions have faced attempts to silence them. On January 4, 2016, the first instance tribunal in Tunis notified Shams, which had registered with the government in May 2015 as an organization working to support sexual and gender minorities, that the court was suspending its activities for 30 days. The suspension followed a complaint by the government’s secretary general, who sent the group a warning to cease alleged violations of the association law in December after Shams’s vice president publicly condemned prosecutions for consensual same sex relations. On February 23, the administrative tribunal overturned the decision and lifted the suspension.
“Tunisia’s abusive treatment of these men simply because it suspected them of homosexuality casts a pall over the other human rights advances the country has made since the revolution,” Guellali said. “The police should stop stripping men of their dignity based on their sexual orientation.”
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