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<<previous | index | next>> APPENDIX: Laws Affecting Male Homosexual Conduct in EgyptA. Relevant Articles of Law 10/1961 on the Combating of ProstitutionArticle 1: (a) Whoever incites a person, be they male or female, to engage in debauchery or in prostitution, or assists in this or facilitates it, and similarly whoever employs a person or tempts him or induces him with the intention of engaging in debauchery or prostitution, is to be sentenced to imprisonment for a period not less than one year and not more than three years and a fine between 100 and 300 LE in the Egyptian administration and between 1000 and 3000 Lira in the Syrian administration. (b) If the person upon whom the crime is perpetrated has not reached the age of twenty-one years, the punishment is imprisonment for a period not less than one year and not more than five years and a fine between 100 and 500 LE in the Egyptian administration and between 1000 and 5000 Lira in the Syrian administration. Article 2: The punishment set down in paragraph (b) of the previous article applies to: (a) Whoever employs, persuades or induces a person, be they male or female, with the intention of committing debauchery or prostitution and this is by means of deception, force, threats, abuse of authority or other means of coercion. (b) Whoever detains by such means a person, male or female, against his will in a place for debauchery or prostitution.
Article 3: Whoever incites a male under twenty-one (Gregorian) years of age or a female irrespective of age to leave the United Arab Republic, facilitates this for them, employs them or accompanies them abroad for the purpose of working in debauchery or prostitution and whomsoever knowingly assists in this is to be sentenced to prison for a period not less than one year and not exceeding five years and a fine between 100 LE and 500 LE in the Egyptian administration and between 1000 and 5000 Lira in the Syrian administration. The maximum term of imprisonment is seven years if the crime is perpetrated against two or more persons or if it is committed by one of the means indicated in the first paragraph of article 2 besides the decreed fine. Article 6: The following are sentenced to prison for a period not less than six months and not exceeding three years: (a) Whoever assists a female to carry on prostitution, even if only by way of monetary expenditure. (b) Whoever exploits in any fashion the prostitution or debauchery of a person. … Article 8: Whoever opens or manages premises for the purpose of debauchery or prostitution or cooperates in any way whatsoever in their management, is to be punished by imprisonment for a period not less than one year and not exceeding three years and a fine not less than 100 LE and not exceeding 300 LE in the Egyptian administration and not less than 1000 Lira and not exceeding 3000 Lira in the Syrian administration. Closure of the premises and confiscation of goods and furnishings found therein is directed. If the one committing the crime is related to the one carrying on debauchery or prostitution, is charged with his upbringing or has authority over him, the prison sentence is for not less than two years and not exceeding four years besides the decreed fine. Article 9: Punishment by imprisonment for a period not less than three months and not exceeding three years and a fine not less than 25 LE and not exceeding 300 LE in the Egyptian administration and not less than 250 Lira and not exceeding 3000 Lira in the Syrian administration or one of these two punishments applies in the following cases: (a) Whoever lets or offers in whatever fashion a residence or place run for the purpose of debauchery or prostitution, or for the purpose of housing one or more persons, if they are to his knowledge practicing debauchery or prostitution. (b) Whoever owns or manages a furnished residence or furnished rooms or premises open to the public and who facilitates the practice of debauchery or prostitution, either by admitting persons so engaged or by allowing on his premises incitement to debauchery or prostitution. (c) Whoever habitually engages in debauchery or prostitution. Upon the apprehension of a person in the last category, it is permitted to send him for a medical examination. If it is discovered that he is carrying an infectious venereal disease, it is permitted to detain him in a therapeutic institute until his cure is completed. It is permitted to determine that the convicted person be placed, upon completion of his sentence, in a special reformatory until the administrative agency orders his release. This judgment is obligatory in cases of recidivism, and the period spent in the reformatory is not allowed to be more than three years. … Article 11: Anyone who profits from or manages public premises or a public nightclub or other premises open to the public and employs persons who are engaged in debauchery or prostitution with the intention of facilitating this for them or with the intention of taking advantage of them to promote his premises is to be punished with a prison term not exceeding two years and a fine not exceeding 200 LE in the Egyptian administration and 2000 Lira in the Syrian administration. The punishment is imprisonment for a term not less than two years and not exceeding four years and a fine from 200 LE to 400 LE in the Egyptian administration and 2000 Lira to 4000 Lira in the Syrian administration if the perpetrator falls into the category of persons mentioned in the last paragraph of article 8. The closure of the premises for a period not exceeding three months or permanently in the case of a repeat offence is imposed. Article 13: Any person who habitually works or resides in premises used for debauchery or prostitution and is aware of this is to be punished by imprisonment for a period not exceeding one year. Article 14: Whoever publicizes by any form of publicity an invitation which includes inducement to debauchery or prostitution, or draws attention to this, is to be punished by imprisonment for a period not exceeding three years and a fine not exceeding 100 LE in the Egyptian administration and 1000 Lira in the Syrian administration, or one of the two punishments. Article 15: As a consequence of a judgment of guilty in one of the crimes stipulated in this law, the convicted person may be placed under observation by the police for a period equivalent to the length of the sentence. This is without infringement of the special laws regarding homelessness. B. Moral Panic and the Criminalization of “Debauchery” in Egyptian LawEgypt’s legislation on sexual conduct does not, despite the government’s protestations, derive from immemorial cultural values. It is a product of Egypt’s secular law system, stemming ultimately from codes imposed during colonial rule.461 Specifically, Egypt’s criminalization of consensual, non-commercial sex between men arose partly out of, and partly in reaction to, the colonial regulation of female sex work. Prostitution has an immemorial history in Egypt. Pre-colonial rulers regulated it primarily through taxation. Sex workers' relationship with the state fluctuated with the country’s circumstances: thriving and tax-paying for long periods, promoted during many holidays and festivities, but policed during political upheavals or when the government's religious legitimacy was in question. At the end of the nineteenth century, Khedive Tawfiq, the hereditary ruler, instituted state regulation of the sex work industry—for health reasons.462 Almost immediately upon British occupation, the Ministry of Interior began issuing additional regulations, and in 1905 a comprehensive law legalized brothels in certain areas and mandated weekly medical examinations of women sex workers. This system remained in force until 1949. 463 Agitation against the brothel system employed moral terms, but was rooted in the political resistance to colonialism. 464 Although Egyptian feminists also called for abolishing prostitution, nationalism and religious fervor provided the mainstay of abolitionist sentiment. The use of brothels by British troops, and the privileged status enjoyed by foreign prostitutes over Egyptians, contributed to prostitution's association with political subjugation.465 At the same time, though, the campaign against sex work in Egypt drew paradoxical energy from a mounting European and American panic over “white slavery”—a panic which shaded into racism.466 In 1949, with Egypt under martial law,467 a military decree ended the legal status of prostitution and abolished all brothels. Egyptian governments, threatened by both nationalists and the Muslim Brotherhood, prioritized abolition. When martial law ended a year later, the executive pressed legislators to pass a permanent ban on sex work. The results persist, and still punish: they display the difficulties, and the deformations, in containing moral and political outrage within legal language. In 1949 a special committee of the House of Representatives (then the lower house of parliament) began studying the draft of the first anti-prostitution law in Egypt. The committee's report recommended introducing the term fujur [debauchery] as a criminalized conduct. It urged adding the word “so the text [can] include male prostitution, since the word di`ara [prostitution] only referred to female prostitution.”468 The distinction the committee introduced was obviously not grounded in the dictionary. For an Arabic speaker the word di`ara referred to commercial sex regardless of the gender of those who practiced it. Fujur was much broader, conveying immorality in general, with a sexual tinge but no inherent commercial implications. The committee explained that “judicial precedents” used di`ara to refer to female prostitution and fujur to refer to male prostitution. Human Rights Watch has found no such precedents. 469 Yet including fujur in the law on prostitution was significant. It launched a process by which not only the language but the reach of the bill expanded—and abandoned precision. When the draft was later referred to the Senate for study and approval, some members wondered why the word “prostitution” needed to be used at all. The joint report of the Senate's First Committee on Justice and Committee on Social Affairs suggested deleting di`ara and letting fujur incriminate all immoral behavior by men and women alike. The government evidently saw commercial sex work as the law’s target. The state had, prior to the ban on prostitution, granted licenses to male as well as female sex workers to practice the profession.470 It is therefore likely that the government hoped legislatively to retract male sex workers' licenses along with women's—and used the word di`ara in the original draft to include both male and female sex work.471 However, the law was brought forward under conditions not friendly to fine distinctions. With the country in turmoil, the state needed to vindicate both its religious rigor, against the burgeoning Muslim Brotherhood, and its nationalist credentials. Moreover, its intervention around sex laws had embroiled it in an international crusade, the turbulent and often racist campaign against “white slavery” which culminated in 1949 in the United Nations' passage of a “Convention Against the Traffic in Persons.”472 Indeed, the lawmakers went beyond the goals of most anti-prostitution campaigners. Abolitionist groups saw prostitutes as victims; Egypt’s parliament treated them as criminals.473 Adding fujur, in the same spirit, allowed the law to be read as condemning not just prostitution but sexual immorality in general. And a further extension was embodied in the two Senate committees' report in 1951; that document defined prostitution simply as “the practice of vice with others with no distinction.”474 It observed that the same act is described as “prostitution” (di'ara) if the perpetrator is a woman or “debauchery” (fujur) when “vice” is committed by a man. In the absence of the monetary element, the definition in effect criminalized consensual “promiscuity” in general, rendering exchange of money for sex irrelevant. Multiple motives probably drove including fujur and expanding these definitions. Practical issues likely played a role: lawmakers may have wished to make it easier for vice squad officers to arrest prostitutes even without witnessing money being exchanged. However, the desire to make a sweeping moral statement was also clearly evident. 475 Promulgated in 1951 as Law no. 68/1951 on Combating Prostitution, the law is now known as Law 10/1961, after it was reintroduced with minor changes to ban prostitution in Syria, then unified with Egypt. Legal commentaries reflect the increased sweep of the law. One, by the then Director of the Department for Protection of Morality at the Interior Ministry, repeats that prostitution is “the practice of vice with others with no distinction”; having stripped prostitution of its financial element, the writer goes on to state that fujur is “prostitution masculine” while di'ara is “prostitution feminine.”476 Another commentator defines prostitution simply as “illicit sexual contact,” and states that “di`ara or prostitution feminine is the practice of vice with others with no distinction and it means the prostitution of women,” while “fujur or prostitution masculine is the prostitution that occurs among males only.”477 Still another states that “prostitution, as meant by Egyptian legislation, is the practice by females or males of acts that could satisfy the lust of others directly with no distinction.”478 This vagueness, and the separation of the law’s language from the intent to punish commercial sex, laid the groundwork for interpreting fujur to punish homosexual conduct by men in general. C. “Habituality”Egyptian law distinguishes between “simple” crimes and “habitual” crimes. One commentary explains, “A crime of habituality is a crime whose material component reveals a condition of habituality on the part of the offender. There is no way to reveal this unless the act consists of a physical deed that recurs: so that if this deed occurs only once, there is no crime of habituality.” 479 Article 9(c) of Law 10/1961 criminalizes the habitual practice of prostitution or debauchery. In principle this means that a man who has sex with another man only once or a woman who has sex for money only once cannot be convicted. Only the recurrence makes the act a crime.480 Few precedents exist for considering an act innocent if engaged in once, but criminal after multiple indulgences.481 The “habituality” of these sexual offences shows the law targeting not isolated acts of prostitution, but the person of the dedicated prostitute as an object of repression and control.482 By extension to male “debauchery,” the criterion of habituality shows something like the identity of the “homosexual” emerging in law: the provisions are aimed at the individual who engages in male homosexual acts not out of intermittent whim but as the consistent expression of a dominating desire. Crimes under Law 10/1961 are misdemeanors. 483 The statute of limitations for a misdemeanor is three years.484 Thus the standard of “habituality” is that an act must be committed at least twice within a three-year period. The Court of Cassation has held that “the only incidents that should be considered to prove the component of habituality are those that were not separated by more than three years. The last incident should similarly not be separated from the start of the investigation by more than three years.”485 Parliamentary debates, and later jurisprudence, stated that debauchery must be practiced “with people with no distinction.”486 No precise meaning is specified: the Cassation Court ruling which found that fujur did not require the exchange of money actually noted that “obtaining a financial reward in return could stand as a proof of non-distinction among people and accepting to practice vice [fasha’]with them.”487 A more usual understanding appears to be that the act must be committed more than once with more than one person. Thus Egypt’s Prosecutor General told Human Rights Watch that “if someone is in a relationship, that is one thing. But practicing homosexuality with people without discrimination is another thing. This kind of promiscuity is criminalized.”488 In practice, both habituality and the want of “distinction” are almost impossible to prove—a fact which does not stand in the way of prosecutions and convictions. As this report shows, such legal intricacies are disregarded. Even the Cassation Court qualified its own stipulations, declaring that “The component of habituality … is left to the given court to determine … as long as this determination is reasonable.”489 D. “Advertising” and “Inducing”: Other ProvisionsSince 2001, Egypt has moved to entrap and punish gay men seeking to meet other men over the Internet. Several laws on expression and behavior are used—some deriving even more directly than the “debauchery” law from colonial-era precedents. Article 178 of the Criminal Code states:
The article is a basic tool of censorship in Egypt, mustered against political expression.490 It is used to criminalize even non-sexual Internet advertisements posted by gay men. It is similar to article 14 of Law 10/1961 (above), which punishes with up to three years of imprisonment anyone who publishes “an invitation which includes inducement to debauchery or prostitution, or draws attention to this.” Most defendants in Internet entrapment cases faced one or both of these two charges, in addition to the “habitual practice of debauchery.”491 Two other provisions are also sometimes tacked on in Internet cases. Article 269 bis of the Criminal Codestates:
The term used for “indecency” in article 269 bis is fisq. Like fujur, the word generally suggests immorality in Arabic.493 However, it is also used for non-vaginal or anal sexual acts: one commentary defines fisq as “any illicit sexual act committed by males or females short of [full] sexual contact. This is because sexual contact for men is fujur and for women is di’ara. Fisq is below this.”494 Commentaries agree that fisq can be committed by creating a sexualized environment even if no sexual act happens—a fact significant for Internet entrapment cases, in which men are arrested and convicted on the basis of their expression in posted advertisements or Internet chat (or under the false allegation that they comported themselves lewdly on the street while waiting for an assignation), but without any solid evidence of sexual relations.495 The article does not specify what constitutes an “incitement to commit fisq”; judges exercising discretion have imprisoned women for uttering such phrases as “let’s spend this pleasant night together,”496 or for talking to men they did not know.497 Article 269 has proven useful in a number of cases involving Internet entrapments. The core charge in these cases remains “habitual practice of debauchery” under article 9(c) of Law 10/1961: but the men are seized on the street and not caught in the act, a fact which defense lawyers can use to cast doubt on the manner of arrest.498 Vice Squad officers use article 269 bis to claim that they arrested their victims in flagrante while committing the other crime of inciting passers to commit indecent acts. They add this minor charge to the usual two graver charges of “practicing” and “advertising” debauchery.499 The standard arrest report in Internet entrapment cases describes the suspect's conduct in an invariable template:
The anonymous third party is always immediately released, though he is the only witness to the “crime.” All victims interviewed by Human Rights Watch called this incident a fiction. However, it offers justification for a solicitation arrest. In most Internet cases, authorities drop the charge of “inciting passersby to commit indecency” for lack of evidence: but defendants still face the more serious charges. Yet this use of article 269 bis of the Criminal Code entails a legal error. Article 34 of the Criminal Procedural Code states that one can be arrested in flagrante only for felonies or misdemeanors punishable by more than three months’ imprisonment.Since article 269 bis only merits a sentence of one month, Vice Squad officers must still obtain a warrant before arresting someone for this charge. Finally, article 278 of the Criminal Code states,
The provision has remained unchanged since first appearing as article 256 of the Criminal Code of 1883. Prosecutors have used it in at least one case against a defendant entrapped over the Internet.501 The Court of Cassation has left wide scope for defining the acts entailed, holding that “the assessment of such acts differs among contexts and atmospheres and the susceptibility of people’s sense of shame.”502 Article 278 is distinctive, however, in its definition of what is “public.” In libel or defamation cases, for example, prosecutors must show that an utterance was actually heard or read by others, to prove that the victim’s reputation was harmed. The Court of Cassation has regularly ruled, however, that an act can be considered public under article 278 even if others did not see it, as long as someone could have seen it.503 This elision of the boundary around privacy is particularly troubling in view of the emerging rigor of Internet surveillance in Egypt. Egypt has a sophisticated jurisprudence defining public and private spheres.504 Neither the jurisprudence nor existing law, however, is adequate to deal with the fluid character of cyberspace, a realm in which privacy and publicity intermingle.505 Article 278 represents a general invocation of “public morality,” and an unspecified sense of shame, against the right to privacy. E. Police Supervision and InstitutionalizationArticle 15 of Law 10/1961 allows a person convicted under the law to be placed under police supervision for a period equal to his sentence. 506 Judges routinely impose such supervision after prison terms in “debauchery” cases. Such supervision, in Egypt, is more than mere probation: it is virtually an extension of the prison sentence. The supervision system, created by Law 99 of 1945, generally requires the convict to spend every night in a police station.507 Thus the prison term for “debauchery” convicts represents only half their ordeal. Freed from prison, the men must still sit in a cell between 6 p.m. and 6 a.m. every night—for the same period they spent behind bars. The United Nations Standard Minimum Rules for the Treatment of Prisoners state:
However, instead of a system of early release designed to reintegrate former prisoners into social existence, Egypt has established a system of prolonging sentences—devoid of any pretence of social aid, and placing the prisoner nightly under direct police control—that actively hampers any such reintegration. The creation of the police supervision system by Law 99/1945 was part of a larger, two-pronged effort at social control—one reaching beyond the limits and possibilities of juridical punishment and the penitentiary system. Law 98, also passed the same year, was a matching attempt at administering social outcasts by bureaucratic, extrajudicial means. Both were part of a mounting tendency toward regulative social cleansing, of which the law on prostitution six years later also formed a part. Law 98/1945 dealt with “vagrants and suspicious persons.” The latter is defined as any adult “convicted more than once of any of the following crimes, or about whom it became known on reasonable grounds that he has habitually committed any of the following crimes and deeds”: the list included assault, kidnapping, and counterfeiting, and later legislation added “crimes stipulated in Law 10/1961 on the Combating of Prostitution.”509 The Minister of the Interior, without judicial appeal, could impose residential limitations, police supervision, or institutionalization in a “labor institution” for a period of six months to three years.510 The category of “suspicion” grows from the same framework as “habituality”: the search for a way to criminalize classes of persons, not acts.511 However, the process was halted in 1993 by the Constitutional Court, which abrogated the law and the category of “suspicion crimes,” finding they violated “human rights and freedom.”512 Vestiges of the treatment of “suspicious persons” persist, however, in the practice of institutionalization for recidivism. Law 10/1961 allows placing a convict in a reformatory after the sentence is served, making this obligatory in case of recidivism.513 Article 49 of the Criminal Code defines a recidivist as any felony convict who commits a crime at any later point, or any misdemeanor convict who commits another misdemeanor within five years. In tandem with Law 10/1961, this allows repeat “debauchery” offenders to be institutionalized for up to three years.514 The same strictures the Constitutional Court invoked against “suspicion crimes” should apply to the institutionalization penalty in Law 10/1961. As arbitrary detention, it violates article 41 of Egypt’s constitution, which defends individual freedom; with release subject to administrative order, it violates article 66 of the constitution, which holds that “No penalty shall be inflicted except by a judicial sentence”; and it imposes multiple penalties for the same offence. 461 The first criminal code, introduced by Khedive Tawfiq in 1883—the year after British occupation—was modeled on the Napoleonic criminal code of 1810. For a patronizing account of its introduction from the colonizer’s perspective, see the Earl of Cromer, Modern Egypt (New York: MacMillan, 1908), v. II, pp. 514-523; see also Nathan Brown, “Law and Imperialism: Egypt in Comparative Perspective,” Law and Society Review, vol. 29, no. 1, February 1995. Later revisions hewed to the essential elements of the 1883 code; although the Constitution was amended under Anwar al-Sadat to state that Islamic jurisprudence is the principal source of legislation, criminal law has never been revised accordingly. 462 The Egyptian Enlightenment arrived armed with a scrub brush rather than a torch: hygienic considerations, the “civilizing mission” to clean, often served as a marker for modernity. This was consistent with the concerns of colonial rule, which tended to see prostitution less as a moral than a medical problem, a field for the growing European intertwining of social ordering, statistical tabulation, and public health. France had decriminalized prostitution (like sodomy) during the Revolution; French science soon turned to studying the prostitute as an experiment in both political and medical control. One of the most influential works of the nineteenth century, Alexandre-Jean-Baptiste Parent-Duchatelet's De La Prostitution dans la Ville de Paris, Considéree sous le Rapport de l'Hygeine, de la Morale, et de l’Administration (Paris: 1837) comprehensively studied the lives of female sex workers, with an unsentimental eye not to their moral redemption but to their more effective regulation by the Vice Squad. It served as a model of statistical method, and entwined a trinity of terms—”hygiene,” “morals,” and “administration”—which remained inextricable in the approach to sexual offences into the twentieth century. (His clinical methods also influenced the forensic doctor Ambroise Tardieu, whose investigations into “sodomy” still direly resonate in Egypt in the twenty-first century: see chapter VII.) Parent-Duchatelet's writings inflected the adoption, in Britain between 1864-69 and in its colonies later, of “Contagious Diseases Acts,” which legalized sex work but subjected female sex workers to medical inspection. These laws in turn became the pattern for regulation in Egypt under British rule. 463 For more details on the history of licensed prostitution in Egypt see Emad Hilal, al-Baghaya fi Misr, Dirasa tarikheya Ijtima’eya (1834-1949) [Prostitutes in Egypt, a Socio-historical Study (1834-1949)] (Cairo: al-‘Arabi Publishing and Distribution, 2001); and Mohamed Sayed Kilani, Fi Rubou’ al-Azbekiya, [In the neighborhood of al-Azbekiya] (Cairo: Dar al-Arab, 1958). 464 Their intertwining was represented by the figure of Sheikh Mahmoud Abul-Uyun, an Al-Azhar scholar and leader of the 1919 revolution who saw the licensing of sex work both as a moral catastrophe and a consequence of colonialism. See Yunan Labib Rizk, “The Black Page: A Diwan of Contemporary Life (309),” in Al-Ahram Weekly, October 28-November 3, 2000. 465 Europeans in the sex trade, unlike their Egyptian counterparts, were protected from many forms of legal harassment by the immunities of the capitulations system, which allowed foreign nationals to be tried by diplomatic courts under their own legal systems. 466 For example, one travelogue of the “white slave trade,” dealing with “the Oriental phase of the traffic,” featured a visit to the Suez city of Port Said, where the spectacle of European women servicing a racial melange of customers inspired the author to tones of horror: “Is the race dying?… There is a corruption in the East from which no people of the earth, however far removed, can escape.” Hendrik de Leeuw, Cities of Sin (New York: Smith and Haas, 1933), pp. 191-92. 467 Declared at the outset of the first war with Israel. 468 Appendix 21, minutes of session no. 34 of the House of Representatives, June 26, 1949, p. 2099. 469 Appendix 202, minutes of session no. 22 of the Senate, April 2, 1951, p. 1680. Human Rights Watch has been unable to locate any rulings prior to the banning of prostitution that adopted these definitions. The term did have a history in Egyptian law, though. Article 249 of Egypt’s 1883 criminal code penalized “whoever causes indecent assault by inducing young people of below 18 years to commit fujur and indecency [fisq].” (This provision survived into the 1937 Criminal Code, the basis for Egypt’s existing code, as article 270. It was cancelled upon the passage of the prostitution law in 1951.) Additionally, article 350 of the 1883 code penalized “whoever violates in any way the regulations concerning preventing vice and fujur”; article 247 penalized inter alia “whoever rapes a virgin or non-virgin [female] or practices debauchery with her by force”—a provision which makes it clear that the legal understanding of the term “debauchery” was not, in legal understanding, originally restricted to sexual contact among males. Article 249 drew on article 334 of the French code of 1810, which punished anyone who commits “an indecency by arousing, encouraging, or habitually facilitating debauchery or corruption of young people of either sex.” This suggests that the term was understood from the start, in its legal use, as a translation of the French debauche, employed in French law sweepingly for sexual “immorality” or “corruption.” (See Michel Vincineau, La Debauche en Droit at le Droit a la Debauche (Bruxelles:Editions de l’Université de Bruxelles, 1985), for a detailed treatment of the history and meanings of the term.) 470 Emad Hilal's magisterial work includes a table showing numbers of female and male prostitutes distributed by Governorates; the figures were compiled by the Egyptian Interior Ministry in 1927. Hilal observes: “These figures show that the government went as far in recognizing prostitution as to give permits to effeminates to practice this profession and to give them documents that signify the government’s approval. These were treated just as female prostitutes in terms of medical examination and license renewal.” Emad Hilal, al-Baghaya fi Misr, Dirasa tarikheya Ijtima’eya (1834-1949) [Prostitutes in Egypt, a Socio-historical Study (1834-1949)], pp. 93-94. 471 Moreover, the government’s original draft included an article that criminalized the employment of female prostitutes or “persons with deviant sexual behavior” in public clubs. That phrase was later deleted after the introduction of the term fujur. 472 For a discussion of the “white slavery” campaign as a moral panic, see Jo Doezema, “Loose Women or Lost Women,” Gender Issues, Vol. 18, no. 1 (Winter 2000), pp. 23-50; and Mary Ann Irwin, “White Slavery as Metaphor: Anatomy of a Moral Panic,” Ex Post Facto, Vol. 5 (Spring 1996). See also A. L. Stoler, “Making Empire Respectable: The Politics of Race and Sexual Morality in 20th-Century Colonial Cultures,” American Ethnologist, Vol. 16, no. 4 (1989) pp. 634 - 60. 473 A draft of law 68/1951 on combating prostitution was sent to the Federation Abolitioniste Internationale in Geneva. The Federation criticized article 9(c) of the law because it “punishes prostitutes, i.e. the victims of prostitution.” The memorandum also drew attention to the injustice of punishing the sex worker but not the client; that comment too was disregarded. Cited in Mohamed Nyazi Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study], Doctoral Dissertation, Faculty of Law, Cairo University, 1961, pp. 161-62. 474 This is one of several invocations of this “definition” during the debates: Appendix 202, minutes of session no. 22 of the Senate, 2 April 1951, p. 1681. 475 Conceivably lawmakers simply believed that no man would consent to being anally penetrated except for money, and that criminalizing male “debauchery” was thus coterminous with criminalizing passive male prostitution. One historian argues that, in medieval Arab categorizations of “vice,” an adult’s submission to penetration was “inexplicable, and could only be attributed to pathology”: Everett K. Rowson, “The Categorization of Gender and Sexual Irregularity in Medieval Arab Vice Lists,” in Julia Epstein and Kristina Straub, eds., Body Guards: The Cultural Politics of Ambiguity (London: Routledge, 1991), pp. 66-67. That argument is partly belied, of course, by the fact that khawalat, and other categories of men associated with the passive role, had social roles in many Arab societies at many historical moments which hardly reflected abhorrence or their complete reduction to “pathology” (itself a modern concept). 476 This view is particularly significant since, as Director of the Department for Protection of Morality (that is, the Vice Squad) at the Ministry of the Interior, the author was responsible for enforcing the law. Elsewhere in the work, however, he backtracks, referring to prostitution as “using the body to satisfy the lust of others, in return for a wage, and with no discrimination.” See Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study], pp. 93, 117, and 120. 477 Abdel Hakam Fouda, al-Jaraa’im al-Massa bel Aadaab al-‘Aamma wal ‘Ird fi Dou’ al-Fiqh wa Qadaa’ al-Naqd [Crimes against Public Morality and Decency in Light of Jurisprudence and Cassation Court Rulings] (al-Mahalla al-Kubra: Dar al-Kutub al-Qanouneya, 1994), p. 22. 478 Edwar Ghali al-Dahabi, al-Jaraa’im al-Jenseya [Sexual Crimes] (Cairo: Maktabat Gharib, 1988), p. 183. 479 Mo’awad Abdel Tawwab and Sinot Abdel Halim Doss, Al-Tab al-Shar’i [Forensic Medicine], (no publisher, Cairo, 1999), p. 23. 480 Successive Court of Cassation rulings have clarified this. See for examples Cassation Court ruling in case no. 318/Judicial Year 25, January 10, 1956; Cassation Court ruling in case no. 989/Judicial Year 25, January 10, 1956; Cassation Court ruling in case no. 1658/Judicial Year 39, January 18, 1970; and Cassation Court ruling in case no. 683/Judicial Year 45, May 12, 1975. All these cases involved women in commercial sex work. Law 10/1961 on combating prostitution includes two other such crimes: managing a house for prostitution or debauchery, and working at a place used for prostitution or debauchery. (Other offences in it, such as “exploiting the prostitution or debauchery of another”—pimping—are punishable even if only committed once.) Commentaries cite, as another example of habitual crime in Egyptian law, the habitual practice of usury (“lending money … at a rate of interest higher than the legal ceiling for interest”), under article 339 of the Criminal Code. However, this differs from the offences in Law 10/1961: usury is an offence subject to a fine if committed only once, but is subject to imprisonment if committed again within five years following the first ruling. By contrast, prostitution and debauchery are not offences at all on the first commission. 481 The act of marriage, in legal systems which enforce monogamy, is one. Yet the rationale is obviously different: such systems limit marriage because it is considered a social good devalued by the counterfeiting effect of repetition. Prostitution and “debauchery” are condemned in Egyptian law as social evils. 482 Comparable provisions in some Anglo-Saxon legal systems allow a woman, after a certain number of prostitution convictions, to be identified as a “common prostitute” and subject to surveillance or expulsion. These still hold that a single act of prostitution is a crime, however. 483 Egyptian criminal law divides crimes into three classes: contraventions (mukhalafat), punishable with a fine of less than 100 LE (US$ 15); misdemeanors (junha, pl. junah), punishable with a larger fine or prison term; and felonies (jinayat), punishable with imprisonment or death. The government’s original draft categorized the crimes in Law 10/1961 as felonies; legislators reduced them to misdemeanors. See Appendix 21, minutes of session no. 34 of the House of Representatives, June 26, 1949, p. 2100. 484 Article 15 of the Criminal Procedural Code: “The criminal case is dropped in felonies after the passage of ten years from the day of committing the crime, in misdemeanors after the passage of three years, and in contraventions after the passage of one year, unless the law stipulates otherwise.” 485 Court of Cassation ruling in case no. 1220/Judicial Year 43, January 21, 1974. See also Court of Cassation ruling in case no. 1031/Judicial Year 9, May 29, 1939; and Court of Cassation ruling no. 1658/Judicial Year 39, January 18, 1970. 486 Cassation Court ruling, case no. 683/Judicial Year 45, May 12, 1975. 487 Ibid. 488 Human Rights Watch interview with Counsellor Maher ‘Abd al-Wahid, Prosecutor General, Cairo, Egypt, February 26, 2003. Some commentators have attempted to argue that a defining criterion of fujur and of prostitution should be that the acts are undertaken to satisfy others, not for one's own pleasure. This corresponds to the definition of procurement (but not of prostitution) in article 1 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which specifies that it is accomplished “to gratify the passions of another.” It appears to represent an old principle in Egyptian law, indicated by the characteristic description of the prostitute's client as the “pleasure-seeker”: implicitly the prostitute is the party seeking profit, not pleasure. One commentator states that the law should “exclude from the definition of prostitution the satisfaction of personal lust. … When a man who has sexual perversion seeks men to sleep with him to satisfy his [own] lust, he should not be considered as a prostitute.” Al-Dahabi, al-Jaraa’im al-Jenseya [Sexual Crimes], p. 186. The Cassation Court appeared to endorse this notion in a 1968 ruling, but definitively rejected it (at least so far as fujur as opposed to di'ara is concerned) in its celebrated 1975 ruling, which upheld the conviction under article 9(c) of a man who “was practicing debauchery for his private pleasure.” Cassation Court rulings in case no. 2052/Judicial Year 37, February 27, 1968 and case no. 683/Judicial Year 45, May 12, 1975. 489 Court of Cassation ruling in case no. 1220/Judicial Year 43, January 21, 1974. See also Cassation Court ruling no. 1806/Judicial Year 31, May 7, 1962, and Cassation Court ruling no. 28364/Judicial Year 59, July 30, 1991. Judge Mohammed Abdel Karim cited these precedents almost verbatim while stressing to Human Rights Watch that determining “the habituality of the act and whether it has happened within three years is completely up to the court … In this respect it is not subject to supervision by the Cassation Court.” Human Rights Watch interview with Judge Mohammed Abdel Karim, Cairo, Egypt, March 11, 2003. 490 Shodhy Surur was arrested in 2001, under article 178, for posting on the Internet a famous poem by his father, writer Naguib Surur, attacking the Nasser regime in expletive-filled terms: sentenced to one year's imprisonment on June 30, 2002, he left the country before his appeal could be heard. See Ameira Howeidy, “Battleground Web,” Al Ahram Weekly, October 17-23, 2002. 491 Defendants who “advertise” for “debauchery” over the Internet are sometimes also charged under article 171 of the Criminal Code, which states:
The application of the provision in Internet cases is legally indefensible however, since the only person demonstrated to have been “induced” to commit “debauchery” in such cases is an undercover police agent, and no evidence that the agent succumbed to the temptation is ever introduced. 492 The language of the article traces its ancestry back to article 350 of the 1883 Criminal Code (paragraph 4 of which had introduced the term fujur); that provision, concentrating on the control of public spaces, punished with a small fine and imprisonment of 3 to 7 days:
A 1955 law made 3) a separate article and increased the penalty—in the same spirit of increased rigor toward sexual activity that engendered the Law on Combating Prostitution. The Justice Ministry observed in an Explanatory Memorandum to the law that “the number of those who committed this crime is increasing. It became necessary for the protection of public morals to increase the severity of the punishment for this crime in order to deter those who commit this crime and prevent others from committing it. In addition, confronting vice [radhila] with severity comes in accordance with the general direction towards which modern Egyptian legislation aims.” The original intent of the law was almost certainly to criminalize solicitation for prostitution, and here the link with the 1951 legislation is probably quite direct: the increase referred to in the Explanatory Memorandum was probably the result of the closure of brothels in 1949 (cemented by the 1951 law), which forced prostitution back onto the streets. However, the new provision came to be understood less as an anti-solicitation measure directed at the approach to particular persons than a general instrument for censoring public behaviors that excited disapproval. See al-Dahabi, al-Jaraa’im al-Jenseya [Sexual Crimes], p. 315. 493 It has been employed in Cassation Court verdicts as a synonym for prostitution: see for example Cassation Court ruling in case no. 736/Judicial Year 24, October 18, 1954. 494 Fouda, al-Jaraa’im al-Massa bel Aadaab al-‘Aamma wal ‘Ird fi Dou’ al-Fiqh wa Qadaa’ al-Naqd [Crimes against Public Morality and Decency in Light of Jurisprudence and Cassation Court Rulings], p. 587. Another commentary, though, suggests fisq could comprise any “illicit” sexual deed, regardless how “complete” or what orifices are involved: al-Dahabi, al-Jaraa’im al-Jenseya [Sexual Crimes], pp. 191-92. 495 A key ruling by the Court of Cassation underlies this conclusion: the court upheld a man's conviction for inciting his juvenile daughter (a virgin) to commit fisq by commissioning her to sit with and entertain patrons of a place he had opened and prepared for prostitution. The Cassation Court held that the word fisq was not exclusively limited to “bodily pleasure” but also included any act that corrupted morality: ruling in case no. 112/Judicial Year 11, December 23, 1940. In applying article 269 bis, some courts have considered that the crime only occurred if the inciter's actions only resulted in fisq, or “corrupted” the “victim.” Case no. 4088/1958, al-Azbekiya Contraventions Court, and case no. 3/1959, al-Azbekiya Contraventions Court, both discussed in Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study]. Therefore, the al-Azbekiya District Court found two women in two different cases in 1958 and 1959 not guilty, due to the impossibility of ascertaining the effect their words and acts had on their targets. See case no. 4088/1958, al-Azbekiya Contraventions Court, and case no. 3/1959, al-Azbekiya Contraventions Court, both discussed in Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study]. A consensus, however, contends that the incitement is criminalized regardless of its effect. 496 Cassation Court ruling in case no. 2116/Judicial Year 24, July 1, 1954. 497 Case no. 7071/1958, Abdin Court of Misdemeanors, discussed in Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study], p. 207. On the other hand, some courts acquitted women when prosecutors failed to specify the gestures defendants made in the street to incite passersby, or failed to prove incitement was the defendants' intent. See case no. 2630/1958 al-Azbekiya Contraventions Court; case no. 2046/1985, al-Labbaan Court of Misdemeanors; and case no. 2986/1957, Boulaq Court of Misdemeanors, all discussed in Hataata, p. 211. 498 Arrests in flagrante are regulated by articles 30 to 33 of the Criminal Procedural Code, promulgated by law no. 150/1950 and published on October 15, 1951. Arrests for “debauchery” do not require that the men be caught in the act, so long as police possess a valid warrant; but defense attorneys often cast doubt in courtrooms on the seriousness of pre-arrest investigations by contending that if their clients habitually practiced debauchery Vice Squad officers should have been able to catch them committing their “crime.” 499 That is, under article 9(c) of Law 10/1961, along with either article 14 of the same law or article 171 or 178 of the Criminal Code. 500 From an arrest report by Muqaddam Ahmed Salem, in court file, Qasr al-Nil Court of Misdemeanors, on file at Human Rights Watch; many other instances could be cited. 501 E-mail communication from Mahmoud (not his real name), April 13, 2003. 502 Cassation Court ruling in case no. 1318/Judicial Year 46, April 18, 1929. 503 Cassation Court ruling in case no. 1151/Judicial Year 28, November 10, 1958; in case no. 1411/Judicial Year 38, December 30, 1968; and in case no. 644/Judicial Year 43, October 14, 1973. 504 Cassation Court rulings and legal commentaries define three categories of both public and private places. A public place can be:
See Mahmoud Naguib Hosni, Sharh Qanoun al-Ijra’at al-Jina’iya [Explaining the Criminal Procedural Code] (Cairo: Dar al-Nahda al-‘Arabya, 1988), p. 1143. 505 As evidence of the state's insecurity about Internet privacy, a draft Bill on Communications proposed to the People's Assembly in 2002 included severe restrictions on encryption technologies, imposing a three-year prison sentence on their use without governmental approval The bill also would have allowed extensive monitoring of communications, without judicial warrants, “in fulfillment of national security needs.” The language in question was removed from the bill before its passage: see “Parliamentarians Defend Right to Privacy of Communications: Article 65 of Communications Bill Amended,” press release by the Egyptian Initiative for Personal Rights, December 31, 2002. 506 Currently, article 24 of the Criminal Code includes police supervision among four ‘ancillary penalties’ and articles 29 and 38 stipulate that its length must not exceed five years. Breaking the terms of police supervision is punishable by imprisonment for one year, according to article 13 of Law 99/1945. 507 In fact, article 2 of this law gives the convict emerging from prison the right to choose where to serve his supervision period, subject to Ministry of the Interior approval. Article 5 lists spending the supervision period in police stations as one of several options. Article 7 reads in part: “The person placed under supervision … must be in his house or the place assigned for his living by sunset and not leave till sunrise. He must also inform the mayor, sheikh or a police representative before he leaves his house during the day. The police always have the right to summon the person in any occasion.” It is not clear at what point the options offered by the law collapsed into the single practice of placing “supervisees” in police stations. 508 “United Nations Standard Minimum Rules for the Treatment of Prisoners,” articles 60(2) and 61 (emphasis added), U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc E/5988 (1977). 509 Article 5, Law 98/1945, as amended by Law 110/1980. 510 Article 6, Law 98/1945, as amended by Law 110/1980. 511 Institutionalization for “suspicion” was eventually brought under judicial oversight; in 1980 the Justice Ministry created special courts for “suspicion crimes,” and special prosecution offices for those crimes were established in Cairo and Alexandria (Justice Ministry decree 2504/1980). Article 7 of Law 195/1983 called for establishing suspicion courts “in the capital of every governorate.” 512 The Court found that the provisions violated the presumption of innocence and the principle of nulla poena sine lege (no crime can exist that is not provided for in law), protected by article 66 of the Constitution, as well as imposing double punishments on the criminal for the same act. See Constitutional Court ruling in appeal no. 3/Judicial Year 10, January 10, 1993. 513 As with probation, punishing recidivist prostitutes severely has a history in Egypt: when prostitution was banned within Cairo in 1834, the punishment for female prostitutes—fifty lashes—was doubled in case of recidivism. Hilal, al-Baghaya fi Misr, Dirasa Tarikheya Ijtima’eya (1834-1949) [Prostitutes in Egypt, a Socio-historical Study (1834-1949)], p. 157. 514 Articles 50 and 51 of the Criminal Code also allow the judge to impose on a recidivist twice the legal sentence for a single act, or a sentence of hard labor of two to five years; article 52 allows sentencing a “habitual offender” to a labor institution for up to six years. (The category of ‘habitual offenders’ was abolished by Law 308/1956 but was restored in by Law. 59 of 1970.) An attorney who has worked on prostitution cases for over fifteen years says: “Prostitutes used to be sentenced to institutionalization in cases of recidivism—after imprisonment and before police supervision. They were kept in a reformatory called Dar al-Aman [House of Safety] in Agouza, Cairo, under the supervision of the Ministry of Social Affairs. This stopped when the special vice courts and prostitution offices were abolished in 1994.” Human Rights Watch interview with an attorney who requested not to be named, Cairo, Egypt, May 23, 2003. There is, however, evidence that institutionalization did not end in 1994. A Cassation Court ruling in 1995 criticized a lower court ruling in a case of prostitution and recidivism, for failing to impose institutionalization. Cassation Court ruling in case no. no. 30795/Judicial Year 59, May 2, 1995.
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