January 10, 2012

Annex 4

December 5, 2011

Mr. Al-Fareek Ghazi Abdelrahman Al-Omar

Undersecretary of the Ministery of Interior

Ministry of Interior

P.O. Box 11, Safat

Kuwait City, Kuwait

T: 2424007  |  F: 2435771

Dear Mr. Al-Fareek:

Human Rights Watch is currently preparing a report on police abuse of transgender women in Kuwait following the passing of amendment to article 198 in the Kuwaiti Penal Code which criminalizes “imitating the opposite sex”.

During a visit to Kuwait in February 2011, a Human Rights Watch research team spoke to 40 transgender women who alleged that police had subjected them to abuse upon arrest and detention, including sexual assault, humiliating and degrading treatment, and physical abuse that may amount to torture.

We would like to ensure that our report on the issue is both accurate and reflects official information and perspectives. We have outlined below a number of problems the transgender women we interviewed say they face, along with illustrative cases. We look forward to your comments and explanations. All pertinent information received by December 26, 2011 will be reflected in our report.  We are also willing to come to Kuwait to discuss these matters in person with you, at a date that is convenient for you.

1. Sexual Abuse, Physical Abuse, and Torture: All the transgender women interviewed without exception reported that they suffered some form of sexual abuse or assault at the hands of the police. Twenty-six of those interviewed say that police blackmailed them into sex at the risk of arrest, and if they refused they were physically abused and humiliated. In all cases, the sexual encounter happened outside the police station – either in police cars or at pre-arranged locations. Additionally, all of those arrested say that police touched them in a sexual manner. Six transgender women told Human Rights Watch that the police forcibly sexually assaulted them.

Transgender women interviewed by Human Rights Watch say that sexual harassment and humiliation also take on different forms, such as parading them around the station in their underwear or asking them invasive questions about their personal sex lives.

Half of the interviewees who were arrested report being physically abused by the police. All of those arrested report being slapped, while ten reported beatings with fists, and two reported beatings with cables and being burned with cigarettes.

Please explain what mechanisms are put in place to monitor police behavior within police stations, and how police misconduct outside of police stations is monitored. Please also clarify how many complaints of sexual abuse against police you have received from individuals arrested for allegedly violating amended article 198 and what the outcome of those complaints were.

2. Arbitrary arrest: Amended article 198 criminalizes “imitating the opposite sex in a public place” without specifying what exactly such imitation entails. The law does not criminalize any specific act or behavior, but rather an appearance whose interpretation is left entirely up to the police, giving them free reign to decide who is breaking the law and how it is broken. Of the 40 transgender women we spoke to, 14 claim that they were arrested while wearing male clothing, including the dishdasha. Three other interviewees also reported that police told them they were arrested for having a “smooth face,” a “soft voice,” and a “feminine watch.”

Four others also claim that they were arrested after police forced them to reveal their underwear at the time of arrest to determine whether they were wearing male or female undergarments.

Please clarify the nature and range of what constitutes “imitating the opposite sex”, and on what basis police are authorized to arrest individuals dressed in clothing in line with the gender on their identification papers. Also, please clarify what measures can be taken by individuals who feel that they were unfairly arrested and detained according to this law, and what measures the government may take to prevent such arbitrary arrests from happening.

3. Procedural Violations: Transgender women have told Human Rights Watch of a range of procedural violations carried out by the police besides arbitrary arrests outlined above. Reports of such violations include pre-charge detention well beyond the four day period permitted by Kuwaiti law, and failure to inform families of detainees of their whereabouts. In four cases former detainees claim that police lied to their parents about their detention when asked. Such acts constitute enforced disappearances, a grave violation of human rights and the rights of detainees.

Additionally, seven transgender women told Human Rights Watch that they were arrested while wearing male clothing, but that the police forced them to dress in female clothes before taking their pictures for their criminal files as a way to falsely prove their guilt.

They also claim that police have subjected them to humiliating examinations and bodily inspections by forensic doctors, even when they were arrested while wearing male clothes.

Two transgender women told Human Rights Watch that they were placed in pre-charge solitary confinement, one of them for a total of nine days.

All the interviewees who were detained and released claim that they were forced under duress to sign a declaration stating that they would not “imitate the opposite sex” again or be “found in suspect places at night,” regardless of when or where they were arrested, or what they were wearing at the time of arrest. They also claim that police shaved their heads before releasing them.

Please clarify on what legal basis and in what situations police can authorize bodily inspections by a forensic doctor. We would also like to understand on what legal basis do individuals charged with violating amended article 198 either get a court case or are forced to sign a declaration and released? Please also explain the basis in Kuwaiti law for head shaving of individuals charged with violating amended article 198.

4. Redress for Violations: Human Rights Watch has asked transgender women who say they were abused by police why they did not submit complaints. The majority said that they were threatened by the police with re-arrest for violating amended article 198. Since police carry out these arrests arbitrarily with no monitoring and with impunity, Human Rights Watch believes that the victims are indeed at risk if they complain about police treatment. Additionally, three transgender women have said that police arrested them for violating amended article 198 while they were at the police station to report car accidents, and others in the same situation said that they were threatened with arrest if they did not leave immediately.

In one case documented by Human Rights Watch, a transgender woman said she was arrested at a checkpoint in September 2009. She says that the arresting officers took her to the traffic police station in Salmiya and attempted to sexually assault her, and when she resisted, Lieutenant Khaled Al-Sabah put out his cigarette on her hand, telling her he wanted to give her “something to remember me by”. She says he wrote a report claiming falsely that she ran a red light and suspended her driver’s license for 3 months. She met with Maj. Gen. Thabet al-Mhanna and submitted her testimony to him after he heard her tell her story on TV. Human Rights Watch has no knowledge of whether the officer in question was investigated or punished.

In another case, a transgender woman told Human Rights Watch that she submitted a complaint to the Hawalli police station in May 2010 against a police officer who she says raped her in the Criminal Investigation Department. She maintains that the officer in question was neither investigated nor punished.

Please clarify what procedures exist for citizen complaints against police mistreatment, how investigations are conducted, and whether measures are put in place for impartial and independent investigation. Please also explain the measures put in place to deal with threats of retribution against civilians who file complaints. We would also like to know how many complaints of police abuse from individuals arrested for allegedly violating amended article 198 you have received since 2007, and what the outcome of those complaints were.

We look forward to reading your comments on the above issues, as well as any additional comments you wish to provide on the issues of police abuse and arbitrary detention of those suspected of “imitating the opposite sex.”

As noted above, we will reflect in our forthcoming report all pertinent information you provide to us by December 26, 2011. We also reiterate our interest in meeting you in person to discuss these issues, before our report has been finalized and when your comments can be fully incorporated.

Thank you for your consideration.

Sincerely yours,

Sarah Leah Whitson

Executive Director

Middle East and North Africa Division