(New York) - The sentencing in Dakar on January 6, 2009 of nine men who were involved in HIV-prevention work, on charges of "indecent and unnatural acts" and "forming associations of criminals," shows how laws against homosexual conduct damage HIV- and AIDS-prevention efforts as well as the work of human rights defenders, Human Rights Watch said today.
"These charges will have a chilling effect on AIDS programs," said Scott Long, director of Human Rights Watch's lesbian, gay, bisexual, and transgender rights program. "Outreach workers and people seeking HIV prevention or treatment should not have to worry about police persecution. Senegal should drop these charges and repeal its sodomy law."
HIV and AIDS advocates in Senegal report that the ruling has produced widespread panic among organizations addressing HIV and AIDS, particularly those working with men who have sex with men and other marginalized populations.
These nine men apparently were arrested merely on suspicion of engaging in homosexual conduct. In that case, international human rights provisions mandate their immediate release. So long as they remain detained - given the general climate of hostility against men perceived to engage in homosexual conduct and the risk of violence against them - Senegalese authorities should ensure their safety by separating them from other prisoners, if necessary. The authorities must also ensure that the men receive any necessary medical care, including antiretroviral therapy.
The men were detained on December 19, 2008, after several police officers burst into the private residence of an HIV outreach worker some miles outside Dakar at 11 p.m. and arrested all nine men in the house. The police confiscated condoms and lubricants - tools used for HIV-prevention work. The police forced several of the men to disclose family members' phone numbers and threatened to inform their families. Sources told Human Rights Watch that the men were beaten in detention, which would constitute a significant violation of Senegal's international human rights obligations.
The men were charged with violating article 319.3 of Senegal's penal code, which provides that "whoever commits an improper or unnatural act with a person of the same sex will be punished by imprisonment of between one and five years." Reports received by Human Rights Watch indicate that the men were not engaged in any activity considered criminal under Senegalese law.
At the trial, prosecutors apparently used the materials found in the house that are standard HIV-prevention tools used in outreach work as evidence of homosexual conduct, for which the men received the maximum five-year sentence. They were also found guilty of "criminal association" in violation of article 238 of the penal code, permitting the judge to add three years to their five-year term.
"Senegal's sodomy law invades privacy, criminalizes health work, justifies brutality, and feeds fear," said Long. "This case shows why it is time for the sodomy law to go."
The men's arrest and detention violates article 9 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to liberty and security of person and rights against arbitrary detention. Senegal ratified the ICCPR in 1978, without reservations. Criminal trials under article 319.3 of the penal code violate Senegal's treaty commitments. Senegal should repeal article 319.3, which also severely hampers HIV/AIDS-prevention and education efforts, barring large populations from access to treatment and care.
The men were arrested only days after Senegal served as the host for the 15th International Conference on AIDS and STIs (sexually transmitted infections) in Africa (ICASA). Presentations at this conference pointed out the apparent contradiction in some countries, such as Senegal, which target HIV/AIDS-prevention efforts at populations of men of who have sex with men but continue to criminalize same-sex relations. Advocates working in HIV and AIDS prevention point out that such an approach necessarily drives the targeted populations underground and mitigates the efficacy of HIV intervention efforts.
Article 7 of the UN Declaration on Human Rights Defenders specifically provides that "everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance." The report of the special representative of the secretary-general on human rights defenders to the UN General Assembly specifically identifies human rights defenders from lesbian, gay, bisexual, transgender, and intersex communities as being at particular risk and has called for greater state vigilance in protecting their rights.
The United Nations Human Rights Committee, which authoritatively interprets the ICCPR and evaluates compliance with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual homosexual conduct among adults violate the ICCPR's protections. According to UNAIDS data, at least 5 to 10 percent of HIV infections worldwide occur through sex between men, though this figure varies considerably by region. Laws criminalizing consensual sexual conduct drive these vulnerable populations underground and permit gross violations of the fundamental rights to life, freedom of expression and association, and health.