December 15, 2010

II. Legal Discrimination against Sexual Minorities

Sodomy is punishable by death so long as both the active and passive partners are mature, of sound mind, and have acted of free will.
—Islamic Penal Code, Article 111.

 

Prima Facie Discrimination Against Sexual Minorities

Iranian law criminalizes all sexual relations engaged in outside the traditional bonds of marriage.[30] Same-sex conduct, whether consensual or forced, is specifically addressed in Iran’s penal code. According to Iran’s Islamic Penal Code, same-sex crimes are subject to hudud, a class of punishment that is fixed pursuant to Shari’a or divine [Islamic] law, where the claimant is deemed to be God.[31] Individuals convicted of engaging in same-sex conduct are subject to severe punishment, including the death penalty.

Iran’s Islamic Penal Code defines lavat (sodomy) as consummated sexual activity between males, whether penetrative or not.[32] Same-sex relations between women, or mosaheqeh, are also punishable.[33] In both cases, the accused may only be punished if they are determined to be mature, of sound mind, and willing participants.

Same-sex intercourse between two men is punishable by death if it is determined that both partners meet these criteria.[34] The manner of execution is at the judge’s discretion.[35] If an adult male is convicted of committing same-sex intercourse with a minor he is to be executed, while the minor shall receive up to 74 lashes unless it is determined that he has not willingly participated in the act.[36] Minors convicted of engaging in same-sex intercourse with one another will receive up to 74 lashes unless one of them is deemed not to have willingly participated in the act.[37]

Tafkhiz , the rubbing together of thighs or buttocks (or other forms of non-penetrative sex between men) is punishable by 100 lashes for each partner. Recidivism is punishable by death on the fourth conviction.[38] “Lustful” kissing between two men or two women is punishable by up to 60 lashes.[39] In addition, “[i]f two men who are not related by blood are found naked under the same cover without any necessity,” each one will receive up to 99 lashes.[40]

The punishment for women convicted of lesbianism, or mosaheqeh, is 100 lashes, regardless of whether the partner is active or passive.[41] Women convicted of mosaheqeh for the fourth time shall be sentenced to death.[42] If two women not related by blood are found naked under one cover without necessity, they will receive less than 100 lashes.[43]

Though the law does not target homosexuals per se and is applicable to any individual who engages in same-sex conduct (regardless of whether they self-identify as gay, bisexual, heterosexual, or transgender) it is, in practice, applied disproportionately to members of Iran’s sexual minorities. Despite some legal recognition,[44] Iran’s transgender community is also adversely affected by the country’s criminalization of same-sex conduct. Iran’s transgender and transsexual persons are often targeted, harassed, and abused by security forces and others because they are considered to be homosexuals. Moreover, transgender Iranians who have not undergone sex reassignment surgery (SRS) and engage in consensual same-sex conduct are, pursuant to Iranian law, subject to criminal punishment.

Same-sex conduct, whether between men or women, is considered proven under Iranian law if the accused confesses to the act four times before a judge, whether orally or in writing, or if four “righteous men” testify that they have witnessed the act.[45] In the case of individuals convicted of same-sex relations via confession, a judge may order the accused to be pardoned if he or she repents.[46] According to Iranian law, if a man accused of same-sex activities other than intercourse, or a woman accused of mosaheqeh repents before the giving of testimony, the conviction will be thrown out.[47] In the absence of confessions or available testimony by eyewitnesses, a judge may enter a conviction for lavat based on his “knowledge.”[48] The law requires that rulings based on a judge’s “knowledge” derive from evidence, and not merely personal belief that the defendant is guilty of the crime.

Although some standards of evidence proving same-sex conduct are seemingly high (i.e. proof based on eyewitness testimony or confessions), the very real threat of prosecution under the law and the serious punishment for those convicted of “homosexual crimes” indicate prima facie legal discrimination against Iran’s sexual minorities. Legal provisions criminalizing consensual same-sex conduct run afoul of Iran’s international legal obligations under the ICCPR, which only allows death sentences for “the most serious crimes.”[49] In addition, the Convention on the Rights of the Child (CRC) prohibits Iran from sentencing individuals to death for crimes allegedly committed while under the age of 18.[50]

Perhaps more worrying, however, are the practical effects of Iran’s legal provisions criminalizing consensual same-sex conduct. Despite the seemingly high standard of proof required under Iranian law to establish same-sex conduct, the evidentiary provisions as written are subject, in practice, to widely varying interpretations and abuse.

The provisions allowing convictions based on the “knowledge” of the judge or on confessions are particularly troubling. Article 120 of the Iranian Penal Code allows a Shari’a judge to reach a verdict on sodomy based on his knowledge as “derived through customary methods,” which in practice enables judges to rely on tenuous circumstantial evidence to determine whether a crime has occurred. This provision also makes it easy in practice for a judge’s individual prejudices toward a defendant’s appearance or demeanor sway his rulings.[51]

Iranian law bans the practice of torture, particularly when used to extract confessions, and evidence acquired through the use of force is inadmissible in court.[52] In addition, those responsible for torture are subject to prosecution and punishment.[53] Yet the practice of torturing prisoners to extract confessions is relatively common in Iran, and forced confessions are often accepted as evidence in criminal trials.[54]

In June 2002, Iran’s Council of Guardians—a committee of twelve senior clerics—vetoed a bill which had been passed by the Majlis (parliament) which would have placed certain restrictions on the use of torture, and would have limited the judicial use of confessions obtained under duress.[55] The refusal of Iran’s government to enact even rudimentary safeguards against torture, whether specifically sanctioned by the judge or committed by police and security forces, sent a message that confessions can be obtained from arrestees by any means.

Other Laws that May Apply to Sexual Minorities

Morality Laws Affecting Sexual Minorities

Iran’s sexual minorities are also affected by criminal laws that do not specifically address same-sex conduct, but are applied to individuals who do not conform to socially acceptable norms on gender and morality. In fact, sexual minorities targeted by security forces in both public and private spaces often face charges related to offenses against public morals or chastity instead of sexual crimes. Examples of such laws include those that penalize the violating of “religious sanctities” in public,[56] operating an establishment of ill-repute or corruption,[57] and encouraging others to engage in “corrupt” and “obscene” acts.[58] Additional provisions under Iran’s penal code address the production, use, and dissemination of material that is considered immoral under Iranian law, including LGBT websites, literature, and other paraphernalia.[59]

During the course of its investigation, Human Rights Watch interviewed several LGBT Iranians who were ultimately charged with various moral offenses having nothing to do with same-sex conduct. For example, in September 2003, police arrested a group of men at a private gathering in one of their homes in Shiraz and detained them for several days. According to Amir, one of the arrested men, the judiciary charged five of the defendants with “participation in a corrupt gathering” and fined them.[60] The person who organized the private gathering was charged with various crimes, including “production and possession of indecent and obscene CDs, video tapes, and audio tapes,” “organizing a corrupt gathering and encouraging youth to engage in corrupt and obscene acts,” and “offending the public chastity.”

Additionally, Human Rights Watch has uncovered evidence suggesting that prosecutors will charge human rights defenders working on issues affecting sexual minorities, or anyone seen by the government as publicizing or promoting LGBT culture with violating national security laws. These crimes may include “propaganda against the regime,” “disturbing the public order,” “participation in an illegal gathering, “and “propaganda against the system.”[61] These individuals may also be subject to two other hadd crimes (crimes against God): moharebeh , or “enmity against God,” and efsad-e fel arz, or “sowing corruption on earth.” Both these crimes are punishable by death.[62]

Military Exemption Regulations

Military service is compulsory for all Iranian men who reach the age of 18.[63] Military regulations, however, prohibit gays, transgender Iranians, and MSM from serving in the armed forces.[64] These individuals are permanently exempt from military service because they are considered moral and sexual deviants with “behavioral disorders.”[65] To be classified as unfit for service, men must undergo a series of psychological and physical tests and overcome numerous administrative barriers in order to prove that they are gay or transgender. Despite the long, tedious, and at times humiliating process involved, hundreds of individuals choose to seek exemption to avoid service.

In addition to suffering humiliation during the exemption process, several individuals who had received exemptions based on their sexual orientation (and not gender identity)[66] told Human Rights Watch that they were vulnerable to discrimination, especially in the area of employment, because their identification cards stated the reasons for their exemption as “behavioral disorders” such as “sexual deviancy.”[67]

Human Rights Watch believes that state exclusion of homosexual and transgender men from the military is another example of discrimination against sexual minorities, as clearly established by international courts such as the European Court of Human Rights.[68] The reason that Iran provides such an exemption for homosexual and transgender Iranians, as well as the procedures it imposes on men seeking that exemption, reflect the state’s refusal to treat sexual minorities as persons who deserve to be treated with dignity and equal to other citizens.

Individuals seeking an exemption must first fill out forms provided by the Compulsory Military Service Bureau for all men over 18 who are required to serve. The applicant then undergoes initial tests conducted by private doctors or psychiatrists who can vouch for the applicant’s “sexual deviancy.” There are few doctors in Iran who provide these tests, and most are located in Tehran. In addition, most doctors who perform the tests refuse to do so unless applicants are accompanied by their parents, many of whom are undoubtedly unaware that their children are gay or transgender.[69] The lack of doctors willing and able to perform these tests, the parental notification requirements enforced by doctors, and the costs associated with the tests effectively foreclose the exemption option to thousands of individuals who may otherwise be interested in pursuing this path.

After a private doctor fills out the forms, the applicant sends them back to the Compulsory Military Service Bureau. He then receives a notification, usually by mail, for an appointment to visit a local hospital for additional psychological and physical testing. The results of these tests are then forwarded to the Bureau, and the applicant is required to report there for a final series of interviews and tests conducted by government doctors that will determine whether he receives his permanent exemption.[70]

Saeed H., a 24-year-old gay male, described a fairly typical path to military exemption:

At first the doctors spoke with me alone. Then they had me speak to a doctor in the company of a parent. I begged my mother to come with me. I promised her that I would begin showing interest in women if she agreed. After two meetings I was given a series of written tests. I had to answer five pages of irrelevant questions about my childhood and about my life. Finally I was sent to two other doctors for a second opinion. After a total of 10 sessions I received my exemption.[71]

Despite the fact that the military exemption procedures for gay men and transgender Iranians have been in effect for years and are considered fairly routine, applicants are not immune from harassment and abuse. Mohammad-Reza, a 31-year-old gay male, received his medical exemption a few years prior to leaving Iran. He visited the offices of Dr. Fereydoon Mehrabi, a well-known psychiatrist who has conducted many of these tests for individuals seeking military exemption. He described his experience during the exemption process:

[After mailing in your forms, y]ou receive an appointment at the military hospital with army doctors. When I went there, the doctor said, “Why do you want to get an exemption? You’ll love it there.”[72] Then he showed me pictures of soldiers. His words upset me so much. He was mocking me. Then he informed me that they need to run more tests. When I stepped in the room [for more testing] I was shaking.
Then you go and take more tests. You go before a council of doctors and you tell them your difficulties. Thankfully they did not find it necessary for me to get a physical exam. But many of my friends had to do it. You basically have to bend over and [the doctor] checks your anus with his finger. Then the doctors write down their opinion. The head doctor was nice to me. They identified me as a “classic homosexual.”[73]

Meysan, a 26-year-old gay male, was one of the applicants forced to undergo the humiliating physical exams that forensic doctors conduct for the ostensible purpose of determining whether they engage in anal sex. In light of the severe penalties available under Iranian law for those proven to have engaged in sodomy, many are understandably suspicious of the exemption process, which Meysan described as follows:

I had a difficult time proving that I was gay. The military doctors didn’t believe it, so they sent me to the forensic doctor. They told me that I behaved like a man, and that I was a man. I told them that this had nothing to do with whether or not I am a man. [In any case,] the forensic doctor performed an anal test on me. It was so humiliating.[74]

Meysan continued:

The process was so difficult. When I finally got my exemption card, it had no value for me. I didn’t need to go to a doctor to know who I am.[75]

Ahmad, a 28-year-old gay male, told Human Rights Watch that a private doctor and army doctors he visited during the process tried to convince him that he was transgender, and not gay: “I told the army officials that I am gay and cannot be in the military. They said no, you are not gay. There are no gay people in Iran. You are a transsexual.”[76]

[30]Islamic Penal Code, Iran, Book 2, chapters. 1-3; see also Islamic Penal Code, Iran, art. 637 (prohibiting illegitimate relations not amounting to sexual conduct between men and women). Criminal heterosexual relations (i.e. fornication and adultery) are addressed in chapter 1 of the penal code, while same-sex conduct described in the penal code as “sodomy” and “lesbianism” is described in chapters 2 and 3. The punishment for “illegitimate relations” between unmarried men and women (including fornication) is flogging, although the death penalty will be applied to repeat offenders, Islamic Penal Code, Iran, arts. 88, 90. Adulterers, on the other hand, are subject to execution by stoning, Islamic Penal Code, Iran, arts.99-107.

[31]Islamic Penal Code, Iran, arts. 12-13. Hudud crimes are essentially crimes deemed to have been committed against God’s will, or “divine law.” The punishment for these crimes, which include sodomy, adultery, theft, are fixed under Shari’a law and may not be altered by anyone, including a judge. The punishment for other crimes, such as qesas (retaliatory crimes) or ta’zir (other crimes for which the punishment is discretionary) may be administered at the discretion of the victim or the presiding judge.

[32] Islamic Penal Code, Iran, art. 108.                                                          

[33]Mosaheqeh is defined as same-sex relations between women by genitals. Islamic Penal Code, Iran, art. 127.

[34]Islamic Penal Code, Iran, art. 111. Article 111 absolves a male victim of rape of any criminal liability because he is deemed to have not participated in the act willingly. In Iran, forcible sodomy or rape of a male by another male is often referred to as lavat beh onf. It should be noted, however, that under Iranian law lavat includes both forcible and consensual sodomy. Moreover, under Iranian law majority (and maturity) is attained at the age of puberty (buluq) as stipulated by Shari’a and as specified in Iran’s 1991 Civil Code as 15 lunar years (14 years and 5 months) for boys and 9 lunar years (8 years and 8 months) for girls. Islamic Penal Code, Iran, art. 49; Iranian Civil Code of November 1991, art. 1210. For a discussion of prevailing debates over puberty and criminal responsibility in Iran, see also Emad Baghi, “The Issue of Executions of Under-18s in Iran”, July 2007, available at http://www.emadbaghi.com/en/archives/000924.php? (accessed July 2010). See also section III for a discussion on Iran’s use of the sodomy law and the death penalty against juveniles.

[35]Islamic Penal Code, Iran, art. 110.

[36]Islamic Penal Code, Iran, art. 112.

[37] Islamic Penal Code, Iran, art. 113.

[38]Islamic Penal Code, Iran, art. 121-22. If, however, the active partner is a non-Muslim and the passive partner a Muslim, the penalty for the active partner is death.

[39]Islamic Penal Code, Iran, art. 124.

[40]Islamic Penal Code, Iran, art. 123.

[41] Islamic Penal Code, Iran, art. 129.

[42] Islamic Penal Code, Iran, art. 131.

[43]Islamic Penal Code, Iran, art. 134. Each offender receives 100 lashes upon the third conviction.

[44] See section X for a discussion of the rights of transgender and transsexual persons in Iran.

[45]Islamic Penal Code, Iran, arts. 114; 117. If the accused confesses to lavat fewer than four times they will be subject to ta’zir, or lesser punishment (which includes corporal punishment), Islamic Penal Code, Iran, art. 115.

[46] Islamic Penal Code, Iran, arts. 126; 133.

[47]Islamic Penal Code, Iran, arts. 125; 132.

[48]Islamic Penal Code, Iran, arts. 120.

[49] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 6(2).

[50]CRC, art. 37(a). Article 6(5) of the ICCPR also prohibits execution of juvenile offenders.

[51] For further discussion of sodomy convictions based on the “knowledge of the judge,” see section VIII.

[52] Constitution, Iran, art. 38. See also Law Respecting Legitimate Freedoms and Protecting Citizen Rights (Citizen Rights Law), art. 9; Criminal Code of Procedure, Iran, art. 129.

[53]See, e.g., Iran Constitution, art. 38; Citizen Rights Law, art. 9.

[54] “Netherlands: No Deportations of LGBT Iranians to Torture,” Human Rights Watch news release, October 8, 2006. http://www.hrw.org/en/news/2006/10/08/netherlands-no-deportations-lgbt-iranians-torture.For further discussion of forced confessions; see sectionVIII.

[55] Even this bill, however, provided inadequate protections against torture. It set no limits, for instance, on the length of time a person could be detained incommunicado, and it would have exempted altogether from its protections certain categories of arrestees, including people charged with moharebeh (‘enmity against God’), a general category for dissidents or moral offenders that could also be interpreted to include sexual minorities.

[56]Islamic Penal Code, Iran, art. 638. This article also addresses women who appear in public without the hijab.

[57]Islamic Penal Code, Iran, arts. 639(a).

[58]Islamic Penal Code, Iran, art. 639(b). See also Cybercrimes Law, Iran, art. 15(b).

[59]Islamic Penal Code, Iran, art. 640. See also generally Press Law, Iran; Cybercrimes Law, Iran.

[60]See, e.g., Human Rights Watch interview with Amir, September 16, 2005.

[61]Islamic Penal Code, Iran, arts. 498-512; 610-11.

[62] Islamic Penal Code, Iran, arts. 183-88.

[63] Men who have either not completed their military service or received an exemption are prohibited from exercising certain entitlements, including obtaining a drivers license or traveling abroad.

[64]See Examination and Medical Exemptions Regulations, Iran.

[65]Examination and Medical Exemptions Regulations, Iran, art. 33, No. 8. As of early 2010, transgender applicants seeking military exemption are no longer classified as having a psychological or behavioral disorder.

[66] In February 2010, the Iranian military announced that it will no longer classify transgender Iranians as individuals with behavioral disorders. According to the Director of Socially Vulnerable groups at the State Agency for National Well-Being, the new regulations will allow transgender Iranians to be classified either as “people with hormonal imbalance” or “diabetics.” “Transgenders No Longer Classified as having Behavioral Disorders on their Military Exemption Cards,” BBC Persian, January 6, 2010, http://www.bbc.co.uk/persian/iran/2010/01/100106_l07_transsexual_iran_sarbazi_armyexemption.shtml (accessed August 23, 2010).

[67] During the course of its investigation, Human Rights Watch spoke to numerous individuals, including human rights activists, who maintained that only applicants who identify themselves as “passive partners,” or maf’ul, (as opposed to fa’el , or the “active” partner) will be considered for military exemption. See, e.g., Human Rights Watch interview with Mohammad-Reza, April 4, 2010. Mohammad-Reza told Human Rights Watch that his understanding in connection with this limitation is that if one is active they can reform themselves and engage in heterosexual intercourse.

[68] Smith and Grady vs. United Kingdom (Application nos. 33985/96 and 33986/96), Judgment of September 27, 1999, para. 90-105, both are available at www.echr.coe.int.

[69] Saeed Kamali Dehghan, “Rainbow Over Tehran,” The Guardian, March 17, 2009, http://www.guardian.co.uk/commentisfree/2009/mar/16/iran-gay-rights (accessed September 30, 2010).

[70] Human Rights Watch Interview with Mohammad-Reza, April 4, 2010.

[71] Human Rights Watch interview with Saeed H., November 2, 2007.

[72] Several gay men interviewed by Human Rights Watch said that homosexual conduct is not uncommon in the military, and several provided testimony regarding their own experiences while in the military. Some of these experiences included consensual sex, while others amounted to sexual abuse.

[73] Human Rights Watch interview with Mohammad-Reza, April 4, 2010.

[74] Human Rights Watch interview with Meysan, April 6, 2010.

[75] Ibid.

[76] Human Rights Watch interview with Ahmad, November 30, 2006. In Iran people often use the term ‘transsexual’ instead of ‘transgender.’ The doctor presumably tried to convince his patient that he was transsexual because transgender Iranians have certain protections under the law. See section X for a discussion on transgender and transsexual rights.