(Tunis) – Tunisia’s law criminalizing consensual same-sex conduct among adults is discriminatory and invites abuse by the police of gay men and men perceived to be homosexual.

Tunisian and rainbow flags were raised at a march against terrorism during the World Social Forum in Tunis, March 2015. 

Tunisia prosecuted at least seven men for consensual same-sex conduct in two prominent cases over the last six months. All of the men were convicted under article 230 of the penal code, which criminalizes “sodomy” with up to three years in prison. Human Rights Watch interviewed five men who had been sentenced. All of them said that police had subjected them to grave human rights abuses, including beatings, forced anal examinations, and routine humiliating treatment.

“The Tunisian government has no business intruding on people’s private sexual behavior and brutalizing and humiliating them under the pretext of enforcing a discriminatory law,” said Amna Guellali, Tunisia director. “Tunisia should remove such archaic laws from its books, and the police who mistreated these men should be held accountable.”

The Tunisian government has no business intruding on people’s private sexual behavior and brutalizing and humiliating them under the pretext of enforcing a discriminatory law

Amna Guellali

Tunisia director

The government should take steps to repeal article 230 of the penal code and issue a directive ordering an immediate end to anal examinations as part of police investigative procedures to determine a person’s sexual behavior, Human Rights Watch said. It should also investigate reports of ill-treatment, including by establishing a confidential complaint mechanism for all cases of abuse by police officers.

Police arrested “Marwen,” a 22-year-old student whose name has been changed for his protection, in Sousse, 120 kilometers from Tunis, in September 2015. The first instance tribunal in Sousse sentenced him to one year in prison for sodomy, in part on the basis of a medical report from a seriously flawed anal examination.

In another case documented by Human Rights Watch, the police arrested six students in the city of Kairouan, 166 kilometers from Tunis, in their student housing apartment in December, on sodomy charges, and subjected them to anal testing. On December 10, the first instance tribunal in Kairouan sentenced them to three years in prison and ordered them banished from Kairouan for an additional three years.

In both cases, the Sousse Court of Appeal reduced the sentence – to two months in the first case, and one month in the second. But the men retain criminal convictions on their records and had already served their time in jail.

Human Rights Watch interviewed four of the six students from Kairouan separately, after their provisional release from prison pending their appeal hearing. Human Rights Watch also interviewed Marwen, who was released after two months. Human Rights Watch also interviewed their lawyers, three activists from associations concerned with the rights of sexual minorities, and a forensic doctor familiar with the use of anal examinations in Tunisia. Human Rights Watch also analyzed the court documents, the police investigative reports, and the forensic anal examination reports in the five cases.

From the moment of their arrest to the time they were released, these young men described multiple abuses at the hands of the police, including humiliating and demeaning remarks on their alleged homosexuality and beatings at police stations and in prison.

They also described how the forensic doctors in public hospitals subjected them to anal examinations, with the purported objective of finding “proof” of homosexual conduct. According to Physicians for Human Rights, anal exams have no medical or scientific value in determining whether consensual anal sex has taken place. Additionally, they constitute a form of torture or cruel, degrading, and inhuman treatment, prohibited under the Convention against Torture, the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples’ Rights.

The five men told Human Rights Watch that the beatings, humiliation, and anal testing traumatized them and at least four said that their families and communities had rejected them. “Physical pain goes away, but the psychological and emotional pain does not go away,” one student said, describing what he experienced.

Prosecutions for consensual sex in private between adults violate the rights to privacy and nondiscrimination guaranteed by the ICCPR, to which Tunisia is a party. The United Nations Human Rights Committee, which monitors compliance with the covenant, has made clear on several occasions that sexual orientation is a status protected against discrimination under these provisions. The UN Working Group on Arbitrary Detention has found that arrests for same-sex conduct between consenting adults are, by definition, arbitrary.

These rights are reflected in Tunisia’s 2014 constitution. Article 24 obligates the government to protect the rights to privacy and the inviolability of the home. Article 21 provides that, “All citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination.” Article 23 prohibits “mental and physical torture.”

Tunisian activists who have publicly condemned these prosecutions have faced attempts to silence them. On January 4, 2016, the first instance tribunal in Tunis notified Shams, which had registered with the government in May 2015 as an organization working to support sexual and gender minorities, that the court was suspending its activities for 30 days. The suspension followed a complaint by the government’s secretary general, who sent the group a warning to cease alleged violations of the association law in December after Shams’s vice president publicly condemned prosecutions for consensual same sex relations. On February 23, the administrative tribunal overturned the decision and lifted the suspension.

“Tunisia’s abusive treatment of these men simply because it suspected them of homosexuality casts a pall over the other human rights advances the country has made since the revolution,” Guellali said. “The police should stop stripping men of their dignity based on their sexual orientation.”

The Prosecution of “Marwen”
Marwen was a student who was supporting himself by working in a clothing shop in Sousse. On September 6, 2015, police from Hammam Sousse, a neighboring town, summoned him for questioning as a witness after they found his telephone number on the phone of a man murdered a week earlier. Marwen told Human Rights Watch that the man’s number was among many that he called from work, to notify regular clients of a special promotion at the clothing shop.

Marwen initially thought the police were questioning him in relation to the murder, but the investigation was suddenly diverted to his sexual conduct:

I was taken into a room where there were seven or eight police agents. They started to ask me questions, and told me the man was dead. I said “Come with me to the shop, you’ll see that I was at work at the time he was killed, I didn’t leave my work, there are surveillance cameras.” The police said, “I don’t give a damn about that.”

They started to ask, “What is the age difference between you? How do you know such an old man? Was he fucking you or were you fucking him?” I said, “What are all these questions?” They started slapping me. I don’t even know where all of this was coming from – They didn’t catch me doing anything, and suddenly I find myself in this situation.

They started slapping me in the face, several of them. They said, “If you don’t talk we’ll use other methods. We’ll make you sit on a glass bottle of Fanta.” [It used to be a common form of torture in Tunisia to sodomize a person with a soda bottle.] They threatened, “We will abuse you, we will rape you.”

One of the cops told me, “If you admit your homosexuality and your affair with this man, we won’t charge you with participation in the murder of this man. It’s in your interests.” I thought he was telling the truth and that they would let me go, so I invented a story about a relationship with that man.

Instead of releasing Marwen, however, police placed him in pre-charge detention, where he spent three days, still unaware of the exact nature of the charges against him. Two days after the first interrogation, police took him to the Farhat Hached Hospital in Sousse and brought him to the examination room, where a doctor told him that he was going to check him for “sperm from the man who was killed.” Believing that such a test might exonerate him of having had sexual relations with the murder victim, Marwen did not object. However, he told Human Rights Watch that the test was “very difficult for me”:

The doctor told me to strip completely and get on the examination table. The doctor told me to bend over. The police were not in the room. There were two female trainees. The doctor put his finger inside me. He moved the finger around. The two women were watching.

The doctor did not inform Marwen of the “results” of the test, nor did he inform him that the test was not, in fact, to look for the murder victim’s sperm, but that it would be used in court as general evidence of homosexual conduct.

Marwen said that, after about 12 days, he was put on trial before the first instance tribunal in Sousse, which sentenced him to one year in prison. On December 17, the appeals court in Sousse reduced the sentence to two months, which Marwen had already spent in detention, and a 300 dinar fine (US$145). He is appealing to the cassation court.

Human Rights Watch reviewed documents in the case. The forensic report, by an assistant doctor at the Hached Hospital in Sousse, states that the doctor received a request from the judicial police in Hammam Sousse to check whether “the accused has signs of pederasty.” The doctor stated that he found “a non-tonic anal sphincter and absence of visible signs of traumatic anal penetration.” He concludes that the “anatomic injuries are compatible with a habit of anal penetration.”

The judgment, dated September 22,  shows that the judge, in finding Marwen guilty, relied in part on the police report, which stated that he had confessed to sodomy. The judge ignored Marwen’s claim that he had made a false confession under duress and intimidation. He also relied on the forensic report as further evidence to sentence Marwen to one year in prison.

The “Kairouan Six”
On December 10, 2015, the first instance tribunal in Kairouan sentenced six students to three years in prison, and three subsequent years of “banishment” from the city of Kairouan, for sodomy. On March 3, 2016, the Sousse appeals court reduced the prison sentence to one month, which they had already served, and a 400 dinar (US$195) fine and quashed the banishment sentence.

The four men Human Rights Watch interviewed said that police came to their student housing apartment in Rakkada, a town near Kairouan, on December 4, 2015, looking for a young man from Tunis whose parents had reported him missing. Fearful that he had left Tunisia to join a militant Islamist group, his parents had placed an advertisement on television with his photograph, asking for information about him. A security guard called the police after seeing the young man in the company of a student from Kairouan University. The young man had gone to stay with friends.

The police found the man at the apartment at about 7 p.m. on December 4, in the company of the two students who rented the apartment and two other friends. The students told Human Rights Watch that three policemen in civilian clothes arrived at the apartment and identified the young man they were looking for, but then searched the apartment and found a laptop, dresses, and high heels. They took the five young men to the Rakkada police station, along with a sixth friend who was coming up the stairs to visit as the police were leading the other five down.

In the police report, a judicial police agent states that he arrested the six students after he received information that “a number of homosexuals are using a house in Kairouan to do sodomy.” The agent states that, when entering the house, he found the students in a “normal position” and that he confiscated one laptop, several dresses, and an unused condom. He says that the laptop had several pornographic homosexual videos, but not of the people he arrested.

In the account below, all names have been changed to protect the students’ privacy.

Abuses at the Police Station
The four students said that, at the police station, they were first interrogated collectively. One student, Jamel, said:

They asked why we were all from Tunis and were gathering in Rakkada. Then when they opened the laptop and saw porn videos, they started asking us about sexual practices. They called me “miboun” [degrading term for ‘gay’] and said, “You’ve come to bring your depraved sexual practices to Kairouan.” They started saying we are gay, and we denied it and said we don’t have gay practices. Then they started slapping, kicking and beating us all together.

The four students told Human Rights Watch that, during their interrogation, the police bullied them continuously – insulting them, using demeaning Arabic words for ‘homosexual.’

Jamel said that he was only wearing boxers and a T-shirt when they arrested him. He said he stayed in those clothes during the entire pre-charge detention, until December 10. He said one of the policemen told him to take off the boxers to see if his pubic hair was shaved.

Another student, Lamine, said:

There were two policemen interrogating me. They asked if I was a member of Shams and I denied it. But after I was released from prison and was able to read the interrogation report, I found that they had put down yes. When I was to sign the police report, I asked to read it first, and the police refused and made me sign. During the interrogation they asked, “Who among those six were you sleeping with? Who do you know in Kairouan? Who is like you? You are a miboun, why are you denying it?”

Forced Anal Examinations, Beatings
The four students said that they spent the night in the Kairouan police detention center. The police took them to the hospital in the morning but didn’t tell them why. Some of them thought it was for a urine test, to check whether they had used drugs. When they arrived, they saw “forensic department” on the hospital wall.

One of the students, Amar, said that the police beat him after he tried to refuse the anal test:

I was the first to enter to the room where the doctor was. I asked the doctor, “What is the test?” He said, “A test like a woman” – meaning a virginity test.

I said “No, I will not do that test.” The policeman screamed at me, “Respect the doctor!” I said, “I am respecting the doctor, but I refuse the test.” The policeman told me to write that I refuse the test, so I wrote it.

Then the policeman took me outside to a small garden. He hit me. He slapped me on the face and punched me on the shoulder and said “You will do the test.” The doctor was not watching, but he knew I was being beaten. The policeman pushed me back into the room and said to the doctor, “He will do the test.”

The policeman told me to write on another paper that I will do the test.

The doctor told me to go on an examination table and said, “Stay like you’re praying” [in the typical Muslim prayer position]. I took my pants off and had to get on the table.

He entered one finger inside my anus, with cream on it. He put his finger in and was looking. While putting his finger in, he asked “Are you ok now?” I said, “No, I’m not okay.” It was painful.

Then he put in a tube. It was to see if there was sperm. He pushed the tube far inside. It was about the length of a finger. It felt painful. I felt like I was an animal, because I felt like I didn’t have any respect. I felt like they were violating me. I feel that up to now. It’s very hard for me.

Another student, Kais, said he heard Amar screaming when the police took him out:

The police asked Amar to go inside the examination room, and he refused to go inside. I said to the policeman, “You don’t have the right, why are you doing this to us?” The police said, “Because you are miboun.

I said, “But the constitution protects physical integrity.” One of the two policemen said, “I will show you what these rights mean.”

Amar signed a paper saying he refused to do the examination, so the two policemen took him outside and I heard them beating him. The doctor was standing there watching all of this. I heard them slap him. Then they took him inside the examination room.

He said that, after seeing his friend beaten by the police, he couldn’t refuse the test, fearing that he would be beaten as well:

They gave me a blank page and the doctor told me to write, “I the undersigned, accept and hereby authorize you to conduct an anal examination on me.” The doctor told me, “If you don’t sign, I will put in your report that you had sodomy.”

The other students described the anal test with similar details. They said that he also put in a long, thin, transparent tube, about the size of a pen, apparently to take some sample.

Human Rights Watch reviewed the requisition order issued by the head of the judicial police in the Kairouan police station, on December 5. It asked the forensic doctor of the Ibn Jazzar hospital in Kairouan to determine whether each of the students was “used to anal sexual intercourse. In the case the answer is positive, the date of the last anal sexual intercourse.”

Human Rights Watch also reviewed the doctor’s report, which concludes that, “there are no signs of violence on the body of the said person. There are signs of habitual passive homosexuality with anal penetration. There are signs indicating that the person has recently, in the last days, had an anal penetration with a solid object such as male penis in erection.”

Forensic specialists Human Rights Watch interviewed strongly contest the claim that a medical exam can detect signs of consensual anal sex. In a communication to Human Rights Watch, Dr. Lorna Martin, Chief Specialist/Head of Division Forensic Medicine & Toxicology, University of Cape Town, said that, “it is impossible to detect chronic anal penetration; the only time the [forensic anal] examination could be of any use is for acute non-consensual anal penetration, when certain injuries may be seen.”

Evidence Used in Court
The students said that during the trial, on December 10, the judge asked them, “So what were you doing, in which position did they find you when the police entered the house?” They said the judge told them that according to the six forensic reports, which were identical, all six of them must have had sex that night with each other or with someone. The medical report and the dresses found in the apartment were presented as evidence.

Lamine said:

At the trial, the judge was asking me “Are you gay?” And I said, “Yes, but I haven’t had sexual relations for three years.” The judge said, “No, that is not true, because the anal test shows you had recent intercourse.” He also asked me about the laptop and the videos, and said, “So you came to Kairouan to spread your depravity, like Shams.”

Jamel said:

The judge was interrogating us, asking whether we knew each other, whether we had sex with each other… he said “Why are you doing this in the Islamic capital?” [Kairouan is generally regarded as the fourth holiest city in Islam].

The judgment, which the court issued on December 10, states that four of the students had confessed to occasionally practicing sodomy in the past, but denied that they are “used to it” and denied that they had sex with one another. It said that the crime of sodomy under article 230 is proven, “as the accused are used to unnatural sexual intercourse condemned by the law.”

It also states that, despite denial by one of the accused, the results of the anal examination and his presence in the house with other “sodomites” are evidence that he is guilty. “The court does not see any mitigating circumstances in the case,” the judgment says. “The court decides that, given the impact of the crime on society, it sentences each of the accused to the maximum penalty under the law, as a retribution and deterrent to their action.”

On the banishment, it says: “Given the accused were practicing sodomy collectively, and they came to the city to spread this obscenity, in a clear attempt to proselytize others and to spread their vices, and to turn against the teachings and foundations of society, and its identity, and in order to avoid any provocation and counter reaction, the court decides to pronounce their banishment from the city of Kairouan for three years.”

Abuses in Prison
The Kairouan students spent a month in the Kairouan prison after the prosecutor of the first instance tribunal in Kairouan issued a detention order, on December 8. They said that when they arrived, the prison guards started beating them.

Kais said:

They started beating us, lined us up against the wall and shaved out heads. They did not do this to other detainees who arrived the same day from the tribunal. They lined us up with our fronts to the wall. A policeman kicked us one by one, saying, “These are your asses that you gave up.” One of us, when he was shaved, was bleeding from the nose due to the stress. They just continued shaving him. One of the prisoners was shaving us.

The students said the guards mistreated, humiliated and intimidated them. Amar said:

The prison guards would call us out and take us to an open area and ask us to dance or to walk like women, and if we didn’t do it, we would be slapped. I was forced to do it. They slapped me to make me do it. A prison guard took a baton and broke it on my hand because I wouldn’t dance. They would do that three or four times a week.

Kais said:

When the guards were bored, they would take us out with handcuffs and beat us. They even poked batons into our anuses, with our clothes on. They did that to me. The first 10 or 15 days, they did this every day. They would take us outside in the hall, handcuffed, and leave us there, and then every police guard would come by and slap us.

Lasting Impacts of Sodomy Prosecutions
Although the seven men have been released, those interviewed reported that their lives were never the same.

Amar tried to commit suicide twice in prison after hearing that he had been sentenced to three years in prison. When Human Rights Watch interviewed him, he indicated that he was still suffering from depression and was hoping that visits to a psychiatrist would help.

The students found the anal examinations particularly traumatic.  Kais said: “Physical pain goes away, but the psychological and emotional pain does not go away.”

The students were all forced to drop out of the university, after being “outed” as homosexual and denigrated in the media. Kais, who hopes to get a doctorate and become a professor of Arabic studies, returned to Kairouan to attempt to take his final exams. But when he arrived on campus, he said, “The students started insulting me and saying ‘Get out of Kairouan.’ I felt that I couldn’t stay.”

Several of the students were rejected by their families. When Lamine tried to return to his family, with his friend Jamel, Lamine’s brother beat them both severely and expelled them from the family home. When Human Rights Watch interviewed them, they were homeless. Kais faced a similar situation:

My family knew from before that I was gay, and they supported me. They came to visit me every week in prison. When I came back to Tunis, I stayed with them for three days, but then my extended family put pressure on my father to reject me.

Kais’s father asked him to leave the family home. When Human Rights Watch interviewed him, he was staying with a friend. He said: “If it wasn’t for my friends, I would be living in the street.”

Recommendations

  • The government should condemn abuse against all detainees, including those arrested on the grounds of their imputed sexual orientation, and investigate reports of ill-treatment, including by establishing a confidential complaint mechanism for all cases of abuse by police officers;
  • The Tunisian police should prohibit officers from engaging in discriminatory treatment, including on the grounds of sexual orientation or gender identity, and hold accountable police officers who engage in discriminatory treatment;
  • The Justice Ministry should immediately ban anal examinations of men accused of sodomy;
  • The Tunisian Medical Syndicate should issue a circular ordering all doctors not to take part in anal examinations, which constitute a violation of medical ethics;
  • Parliament should reform the penal code by eliminating article 230, which criminalizes consensual same-sex conduct.