Decriminalize Consensual Sexual Conduct; Punish Attackers
November 30, 2010
Senegal’s law criminalizing consensual sexual conduct is deeply destructive for many communities, particularly gay men. People live in constant fear of losing their jobs, their families, their livelihoods, their freedom, and their very lives because they are seen as different.
Dipika Nath, researcher in the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch

(Dakar) - Senegal's law criminalizing consensual sexual conduct among adults is discriminatory and invites abuse of homosexuals by both the police and the general public, Human Rights Watch said in a report released today. Human Rights Watch urged repeal of the law, Article 319.3 of the Senegalese penal code, and called on the government to protect all members of society regardless of their sexual orientation and gender expression.

The 95-page report, "Fear for Life: Violence against Gay Men and Men Perceived as Gay in Senegal," includes interviews with dozens of people who have faced threats and violence at the hands of both the police and others in the community. It looks in detail at two key incidents: the "gay marriage" scandal of February 2008; and the arrest of the "nine homosexuals of Mbao" in December 2008. The report also examines several other cases that show how police arrests under Article 319.3 fan broader fear and suspicion.

"Senegal's law criminalizing consensual sexual conduct is deeply destructive for many communities, particularly gay men," said Dipika Nath, researcher in the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. "People live in constant fear of losing their jobs, their families, their livelihoods, their freedom, and their very lives because they are seen as different."

Article 319.3 punishes "unnatural" sexual acts with five years in prison and a fine. While the law ostensibly criminalizes conduct, not character, it is in fact used as a tool for targeting certain "types" of individuals, Human Rights Watch said. The law goes hand in hand with the government's failure to protect lesbian, gay, bisexual, and transgender (LGBT) people from violence, further marginalizing an already vulnerable population. One of the interviewees spoke about the impunity with which the police mistreated him:

Actually, they [the police] didn't catch me having sex but assumed [that] from where I was and how I was dressed. They stripped me naked and beat me. I was detained for two months. They abused me, called me goorjigeen [and abusive names]. ... They stuck needles under my nails to get me to admit [I was gay]. ... They tore my head, forehead, and face. I was beaten on my arms, buttocks, back. The police called me women's names. ... This happened for three days at the police station. I was beaten every day. They also said they would kill me.

The first episode Human Rights Watch explored in depth began in February 2008, when Icône, a monthly Senegalese gossip magazine, published two dozen photos from a party in 2006 claiming the people in the photos were homosexuals engaged in a "gay marriage" ceremony. While there was no evidence of homosexual conduct in the pictures or elsewhere, police arrested several of the men in the photos. The men were soon released, but a massive public outcry, fueled by religious rallies, sermons, and sensationalist media coverage, led to a spate of threats and attacks over the following months, driving many gays into hiding or exile.

In December 2008, only days after Senegal hosted an international HIV/AIDS conference, police arrested nine members of AIDES Senegal, an HIV/AIDS association, accusing them of engaging in homosexual conduct. A court sentenced them to eight years in prison, again in the absence of any evidence of homosexual conduct. Though the men were released in April 2009, many lost their jobs, became alienated from their families and communities, and now struggle to survive.

The publicity and the denunciations in these cases surpassed anything Senegal's gay population had faced before, and the effects continue to be felt. The personal accounts in "Fear for Life" illustrate how a charge of homosexuality, even in the absence of evidence, is easily intimidating and can provoke attacks and ostracism. The violence and persecution also have a negative impact on public health, leading people not to seek health care and HIV testing, counseling, and treatment.

The report also explores the manipulation of public sentiment by some Senegalese political and religious leaders who have been instrumental in creating a climate of virulent homophobia. It also documents the prominent, one-sided, and at times hate-mongering coverage by many Senegalese media outlets.

Senegalese interviewed by Human Rights Watch described being insulted, beaten, stripped, threatened, and tortured in jail as well as attacked and blackmailed in the community, with no recourse to justice or protection from the police or from community members and religious leaders. Those who are arrested and face abuse at the hands of the police also face violence from members of the public after they are released.  More often than not, Human Rights Watch found, the police fail to protect people who face vigilante violence or threats of violence because of their sexual orientation or gender expression.

Senegal is obliged under domestic, regional, and international law to protect and promote the rights of all Senegalese. Senegal is a party to the International Covenant on Civil and Political rights, which guarantees the right to liberty and security of person to all and prohibits arbitrary arrest and detention (article 9). It guarantees the right to privacy (article 17); freedom of expression and association (articles 19 and 22); and equality and non-discrimination (articles 2 and 26). Senegal's constitution also guarantees fundamental rights and freedoms to all of its citizens, including the freedom of expression and association, and the right to health (articles 8 and 12). Furthermore, the African Charter on Human and Peoples' Rights prohibits discrimination on any ground (articles 2 and 19); and guarantees freedom of association (article 10); and the right to health (article 16).

"There can be no justification for allowing institutionalized violence against some members of society simply on the grounds of prejudice," Nath said.  "Failing to act while people live in fear and constant danger is a threat to both the rights of individuals and to public health."

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