Harassment of men suspected of homosexual conduct did not begin with the Queen Boat case. Khaled, twenty-five, told Human Rights Watch a story of how the apparatus of police repression worked. Khaled says,
According to Khaled, Taha Embaby asked him, “Are you gay?”
Police, according to Khaled, were picking up men as they entered the bar in the Nile Hilton Hotel, a popular gay gathering place, as well as what were believed to be gay cruising areas in Tahrir Square.
Khaled was returned to the room where police were recording the arrestees’ names. “There were over a hundred and fifty, I think. I was surprised.”
Sent to cells for the night, in the morning the prisoners were forced to sign arrest reports:
It was Friday morning: the prisoners were taken to the al-Azbekiya niyaba.18
Without interrogating the prisoners, prosecutors charged them with “habitual practice of debauchery,” and ordered their release pending trial. Then they were returned to the al-Azbekiya lockup. There, according to Khaled, “We were all beaten without exception. I still have a scar over my left eye”:
Then they were taken to Embaby’s office, in the Abdin police station.
Khaled’s story—that of a student who suddenly found himself caught up in a police roundup—points to many of the themes this report will explore. It reveals that the Queen Boat case drew on existing police practice—on a mounting impetus toward punishing stigmatized sexual behavior.
Indeed, the legal framework for persecution had been put in place almost fifty years before. The first issue to be examined here is: what law brought Khaled before the Vice Squad? How does Egypt criminalize sex between men?
Since 2001, Egypt has steadily claimed it has no such laws. Responding to a U.N. expert's criticism of the Queen Boat trial, for example, the government alleged its books held “no provision that designates sexual perversion as a criminal offence”20; and in 2003, the speaker of Egypt’s People’s Assembly told the European Parliament that “Egypt’s penal code does not include punitive measures against the homosexuals as the country’s law by no means interferes in the private affairs of individuals.” 21
These statements are false. Egyptian legislation has effectively criminalized male homosexual conduct for over fifty years. The prohibition appears in article 9(c) of Egypt’s “Law on the Combating of Prostitution” (Law 10 of 1961, first passed ten years before). This provision punishes the “habitual” practice of fujur and di`ara with up to three years’ imprisonment, plus fines.22 The Arabic term di`ara isgenerally understood to mean prostitution in the sense of commercial sex, while fujur is a much broader term (translated here as “debauchery”) encompassing a concept of sexual excess.
As Appendix B documents, the language of the law sprang from a sense of moral urgency as colonial domination drew to a close. In a rush to prohibit prostitution—seen as representing not just sin but political subjugation—Egypt’s parliament enacted a much more sweeping prohibition. Veering between punishing sex work and prohibiting sexual misconduct in general, legislators stated they meant di`ara to describe “immorality” by women, fujur “immorality” by men. Fujur, an instrument of moral condemnation rather than legal exactitude, took on a life of its own as courts and the criminal justice system determined what was immoral for males, and concentrated on homosexual conduct.
In the following decades, Egypt’s Cassation Court was called on repeatedly to rule on what di`ara and fujur meant, and their connection to sex work in the narrow sense.23The most significant decision came in 1975. The Vice Squad had broken into a private home, and found one man in the act of sexually penetrating another. The passive partner was charged with fujur. He testified that he had had sex with men repeatedly, but for no financial return.24
The Cassation Court found he was still culpable, meaning that fujur was legally uncoupled from sex work, but connected to male homosexual conduct.
This ruling is cited again and again in contemporary Egyptian court verdicts, to justify convicting men for having non-commercial sexual relations with other men.
Fujur or debauchery thus was divorced from prostitution per se, and came to mean non-commercial male homosexual conduct. In the process, the application of Law 10/1961 to men and to women diverged, moving in radically different directions. Repeatedly, courts held that non-commercial sex between a woman and a man was not punishable even if practiced “habitually.” 26 Non-commercial sex between two men was.
The legal fate of the other partner in the sexual act also differed drastically. The ban on di`ara falls upon the (female) prostitute alone. Only women are liable before the law; the men who buy sex are innocent. Men caught in flagrante with women found to be prostitutes normally go home after filing testimony against their sexual partners.27
Fujur cases seem originally to have followed a similar pattern—in which the “passive” participant was seen as exclusively “debauched,” the “active” as a comparatively innocent “pleasure-seeker.” In the 1975 case mentioned above, two men were caught in the act of penetration; the penetrated man was hauled into court and sentenced to six months in prison for “debauchery,” while the penetrator testified against him and went home.
Such a practice reflects, of course, not just the influence of prostitution cases but a construction of sexuality in which role trumps object. What matters is less the sex of one's object-choice than whether one penetrates (and retains the attendant prestige of masculinity) or is penetrated (and loses symbolic and social authority).
Yet now, in case after case, men are now convicted of “debauchery” for relations with other men regardless of their sexual roles. Both partners in male homosexual sex are now criminals.
The roots of this shift are debatable. Tectonic plates are clearly moving in the social understanding of sexuality: a common if still tentative identity between “active” and “passive” partners has emerged in Egypt, sharing a common stigma. Western models of “homosexuality,” in which emphasis on role gives way to the overriding significance of object-choice, have played a part. Yet the change cannot simply be reduced to their influence. The legal development also stems logically from eliminating the financial requirement for “debauchery” prosecutions. Exchanging money marks out different social roles—purchaser and seller—as well as sexual ones. With that element gone, the tendency increases for the two partners to collapse indistinguishably into one imputation of guilt.
Simply put: fujur in Egyptian law now means homosexual relations between men, whether commercial or not. The law requires that the act be “habitual”—legally taken to mean that it must have been committed more than once in three years, with more than one person.
It is tempting to say the history of this provision illustrates a law not on Egypt’s books: that of unintended consequences. Anxieties over sex work created penalties that would find their full, harsh utility during a second moral panic, in a new millennium. Today article 9(c) of Law 10/1961 is Egypt’s primary tool in punishing male homosexual conduct.
C. “Dance, Khawalat, Dance”: Growing Harassment and the Dangers of Community
Khaled’s story also shows the growing police attention to a phenomenon of late-1990s Cairo: the fact that a substantial subculture of men having sex with men gathered, called themselves “gay,” and grew.
Manyself-identified gay men in Egypt recall the years before 2001 as an interval of connectedness and comparative liberation. In fact, most who joined in what some now describe as Cairo’s fin-de-siecle “scene” did so secretively. Few if any disclosed their sexuality to their heterosexual friends, much less their families. Opportunities for being “out”—for affirming one’s desires to others who shared them—were confined to private parties, friendly cafes, or a few clubs (the Queen Boat discotheque and the Nile Hilton bar among them) on selected nights of the week.
Cairo had long had its cruising areas: places where men interested in sex with men could covertly encounter one another. The pubs and parties emerging in the 1990s, although quiet, allowed still more space and apparent safety for friendship and conversation. In the process, some people began to coalesce around a shared identity, often using the term “gay.” Participants were not exclusively drawn from the privileged. They came from diverse Cairene classes: the list of those seized at the Queen Boat raid in May 2001 includes doctors and teachers, but also truck-drivers and electrical repairmen. Indeed, Human Rights Watch's own research indicates that the idea of a “gay” identity is widely disseminated, even among working-class men in towns outside Cairo. Men were drawn to these gatherings not only by the need for love or sex, but by the hope of making friends, an individual aspiration which contributed to the collective construction of an incipient community.
The aspiration could look very different to the police.
Ismail, in his early twenties when arrested in 1998, was the subject of this police report. He told us how he was arrested near the Hilton bar one Thursday night:
Another police narrative of “perverts” reads:
The passage is from an arrest report in a 1997 case. Nabil, the man described, twenty-eight years old when he spoke to us in 2002, tells his own story:
The late 1990s saw intensifying attention by the Cairo Vice Squad, in particular, to the sites and circumstances in which gay men met other men. Police apparently felt growing pressure to “clean up” the places where “perversion” transpired. Khaled even remembers that, while jailed, “I heard guards saying that the head of the Vice Squad [Taha Embaby] had promised to the minister of the interior that within a year he would have gotten rid of all the gays in downtown Cairo.”33
The provisions the Vice Squad used derived from a law against sex work; likewise, the Vice Squad’s developing approach to “debauchery” drew upon prostitution cases. The standard templates for fujur arrest reports describe a man “walking in a way that draws attention [and] seduces instincts,” or moving “his tongue in a seductive way.” One arrest report from 1997 makes the analogy explicit, noting the “increase in the number of sexual perverts who conduct themselves as do female prostitutes … in a seductive way that contradicts Islamic values.”34 The suspect is regularly said to accost another person, who offers testimony of being solicited but is released without identifying himself.
Vice Squad officers spun mythologies about how to identify khawalat. Colored underwear, long hair, or tattoos were all telltale signs. Police “assumed because his hairstyle was strange that he was gay,” one victim told us about a fellow arrestee.35
Yet men who had sex with men rarely rendered themselves as conspicuous as the police claimed. To unearth them, the Vice Squad instead relied on networks of informers. Kamal, an illiterate shoeshiner arrested in the Queen Boat case, described how police sent informers into cruising areas: “They just round up some ‘girls’, the kind who would be in Ramsis. And then these bottoms are thrown down from the van … and they go out and they say: that one’s a khawal. They would go and talk to someone, and the officer would go over and pick up the person.”36
Police also began raiding bars and clubs, using informers to pick out gay men inside. The Queen Boat was raided several times before the mass arrests in May 2001. One man told Human Rights Watch of an incursion in early 2000:
Also common in fujur cases was the torture Khaled described. Sometimes it was used to extract confessions. Nabil told us that after his arrest, he was beaten to sign the arrest report: “I asked what was there, and then punches and slaps came from everywhere. I had to sign eventually. They grabbed my hair and shook my head till I was dizzy. … The police all acted as if I were too disgusting even to spit in my face.” 38
Sometimes, however, brutality seemed purely punitive. Magdi, twenty-two when Human Rights Watch spoke to him in 2003, told a harrowing story of his arrest in 1997, when he was seventeen. He remembers, “I had long hair and they suspected I was gay.”
Magdi displayed a one-inch scar on his left arm, left by the cigarette lighter.
The Cairo Vice Squad has been the driving force in the campaign against homosexual conduct.40 By the late 1990s, though, police in some other cities joined in the harassment. Kamal, the shoeshiner, told us what had happened in his hometown of Mansoura:
When we asked whether the men did this voluntarily, Kamal seemed puzzled by the question. He said, “We danced because we wanted them to let us go.”
Yet in those years, homosexual conduct was still treated as a sporadic, individual offense—not a collective social threat. While mass arrests furnished police with evidence of a growing community, they still charged the arrested men, as in Khaled’s case, individually. Sentences remained light, tending toward the minimum penalty; often cases were not sent to prosecutors—and a few days’ imprisonment served as punishment in itself.
The crackdown that has burgeoned since 2001 was enabled by the sudden, media-spread perception that men having sex with men were a menacing, manifold group, endangering the nation, demanding drastic measures. That belief was fostered by the furor around the Queen Boat case.
14 Laila Elwi is a popular Egyptian actress. Human Rights Watch has changed the given name (but not the nickname) of this informer, whom victims have implicated in numerous cases, to protect both him and his victims from retaliation.
15 Human Rights Watch interview with Khaled (not his real name), Cairo, Egypt, February 7, 2003.
16 During the interview Human Rights Watch observed this scar, as well as the other described below.
17 Each defendant in the case was given an individual case file and number, to preserve the fiction that no mass sweep had taken place. Human Rights Watch has obtained five files from the case (al-Azbekiya Court of Misdemeanors); the spread between the lowest and highest case file numbers (twenty-three) indicates a large number of victims arrested--Khaled claimed it exceeded one hundred. Each of the arrest reports contains the same language: “Today while passing to observe the state of morality, we saw a person walking in front of the toilets in Ramsis Square, and committing acts and gestures that could arouse the instincts of youth sexually to practice debauchery with him. We approached him, revealed our identities and the nature of our mission, and escorted him to the headquarters of the administration, then interrogated him.” Documents on file at Human Rights Watch.
18 Niyaba in Egyptian Arabic refers to the office as well as person of the state prosecutor: thus the al-Azbekiya niyaba is the prosecutor’s office for the al-Azbekiya police precinct.
19 On July 26, 2000, confronted with dozens of identical arrest reports, Judge Abdel Haq Tawfiq dismissed all the men’s cases, finding them “not guilty for lack of evidence.”
Repeated testimonies in this report implicate Taha Embaby in torture. On May 1, 2003, representatives of Human Rights Watch visited him at his office in Abdin police station, intending to offer him an opportunity to address these allegations. Embaby refused to be interviewed.
20 “Report of the Special Rapporteur on the Independence of Judges and Lawyers,” U.N. Doc. E/CN.4/2002/72, February 11, 2002, at 63.
21 Letter from Ahmed Fathi Sourour, speaker of the Egyptian People’s Assembly, to Pat Cox, President of the European Parliament, April 18, 2003. The letter came in response to a European Parliament resolution condemning the arrest and prosecution of gay men in Egypt.
22 See Appendix B for detailed information on Law 10 and its passage.
23 Egypt’s is a civil-law system in which stare decisis—the principle of judicial precedent—is not in effect, and judge-made law not recognized. However, the “moral authority” of the Court of Cassation remains strong, according to constitutional lawyer Ahmed Seif al-Islam of the Hisham Mubarak Law Center. Within the Court of Cassation, a Chamber for the Unification of Principles regularly promulgates the legal principles underlying the rulings of the court's chambers; it is a mechanism through which the court's decisions become “theoretically binding” across its chambers and upon lower courts. Human Rights Watch interview with Ahmed Seif al-Islam, Cairo, Egypt, February 16, 2003.
24 In fact, prosecutors had charged the defendant under a curious collection of articles from Law 10/1961—essentially with “inducing” others and running his residence for the purposes of debauchery, but not with debauchery itself. The first-instance court, however, changed the charge, and sentenced the defendant to six months of imprisonment under article 9(c) of the law. The prosecution itself appealed the case to the Cassation Court, saying that a defendant could not be convicted under article 9(c) without taking money for sex. The Court found otherwise.
25 Cassation Court ruling, case no. 683/Judicial Year 45, May 12, 1975. A further confusion obtrudes. The 1975 decision actually states that di'ara as well as fujur need not entail the exchange of money. This finding, as the Appendix shows, is consistent with the record of legislators debating the original law, at least some of whom seemed to intend both terms to penalize non-commercial “promiscuity” in general. However, this passage in the 1975 decision is countervailed, in practice and in the evident understanding of the criminal justice system by other Cassation Court decisions holding that non-commercial sex between men and women does not fall under di`ara, and is not criminalized. What police, prosecutors, and particularly judges cling to from the 1975 decision is the finding that male homosexual sex is a crime even if not commercial.
26 The Cassation Court, when required to concentrate on non-commercial heterosexual sex (rather than between two men) repeatedly held that di`ara was specifically commercial sex, and criminal for women. Thus a 1980 verdict, while holding that “Running a house for di`ara could be proved without necessarily receiving financial reward,” made it clear that di`ara itself was constituted by women’s receiving money for sex. (Cassation Court ruling, case no. 2365/Judicial Year 49, April 17, 1980.) A 1991 verdict overturned the conviction of a woman for prostitution, noting that she had engaged in the act for pleasure rather than for profit: it stated that di`ara “excludes special cases as when a person engages in vice for her own sexual pleasure.” (Cassation Court ruling, case no. 552/Judicial Year 60, March 5, 1991.)
And police and prosecutors pursuing women under the law continued to demand evidence that sex had been sold. The very record of court decisions makes this clear. Human Rights Watch has examined forty-one Cassation Court decisions handed down since 1951, in cases under the Law on the Combating of Prostitution; in 40, the defendants were women, and all these involved commercial heterosexual sex. The one decision which did not entail the exchange of money was the 1975 decision involving two men.
In stark contrast, however, the Cassation Court continued to define fujur as non-commercial sex between men. It held that “a man is charged with debauchery [fujur]” only “when he offers his honor [‘ird] to other men with no distinction.” (Cassation Court ruling, case no. 99/Judicial Year 58, April 21, 1988; almost identical phrasing is found in Cassation Court ruling no. 9155/Judicial Year 56, November 26, 1990.) And it held that men's practice of non-commercial “vice” (e.g., extramarital sex) with women was not fujur, falling “out of the range of criminalization, because it does not fall under any other punitive text.” (Cassation Court ruling, case no. 8838/Judicial Year 60, October 13, 1997.)
27 Cases where lower courts tried to hold male customers accountable were thrown out by the Court of Cassation. See, for example , Cassation Court ruling, case no. 99/ Judicial Year 58, April 21, 1988; Cassation Court ruling, case no. 2434/Judicial Year 58, June 8, 1988; Cassation Court ruling, case no. 49867/Judicial Year 59, November 14, 1996; and Cassation Court ruling, case no. 8838/Judicial Year 60, October 13, 1997. A study by the National Center for Social and Criminal Research, a state institute, urged as early as 1961 that male “pleasure-seekers” who purchase commercial sex should be punished equally with the women. The recommendation was never implemented. 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.
28 Arrest report dated December 11, 1998. Exact date and number of case file have been suppressed to preserve the anonymity of the victim; case records are on file at Human Rights Watch.
29 The Mugamma`, a large gray edifice presented to the Egyptian government by the Soviet Union, stands in Tahrir Square and houses Interior Ministry and other offices. A Vice Squad office takes up most of its thirteenth floor.
30 Human Rights Watch interview with Ismail (not his real name), Cairo, Egypt, February 18, 2003. Ismail did not appear at his trial, and was sentenced in absentia to three years’ imprisonment, followed by three years’ police supervision, for the “habitual practice of debauchery.”
31 Arrest report written by officer Alaa Taha, March 4, 1997, Al-Azbekiya Court of Misdemeanors, on file at Human Rights Watch.
32 Human Rights Watch interview with Nabil (not his real name), Cairo, Egypt, August 16, 2002.
33 Human Rights Watch interview with Khaled, Cairo, Egypt, February 7, 2003.
34 Arrest report by officer Ahmed Genaidi, dated July 9, 1997, in court file, Qasr al-Nil Court of Misdemeanors, on file at Human Rights Watch.
35 Human Rights Watch interview with Ayman, Cairo, Egypt, April 17, 2003.
36 Human Rights Watch interview with Kamal (not his real name), Cairo, Egypt, March 4, 2003
37 Human Rights Watch interview with Ayman (not his real name), Cairo, Egypt, April 17, 2003. Ayman was sentenced to three months’ imprisonment for the “habitual practice of debauchery,” but the sentence was overturned on appeal. Another man arrested in the same raid told the International Gay and Lesbian Human Rights Commission, “The police called my workplace and informed them and I was fired. I was unemployed for a long time after the end of the case. I still feel the effects of that period, it makes me very frightened.” Interview with Latif (not his real name) by Scott Long, International Gay and Lesbian Human Rights Commission, Cairo, Egypt, November 14, 2001.
38 Human Rights Watch interview with Nabil, Cairo, Egypt, August 16, 2002. Nabil was sentenced in absentia to one year’s imprisonment and one year’s police supervision for the “habitual practice of debauchery” and went into hiding; verdict, case no. 2297/1997, Al-Azbekiya Court of Misdemeanors. See chapter VI for the continuation of Nabil’s story.
39 Human Rights Watch interview with Magdi (not his real name), Cairo, Egypt, March 2, 2003. Magdi and the other detainees were only taken to see the prosecutor after eight days, although Egyptian law requires that prisoners see the niyaba within twenty-four hours of arrest. They were released by the niyaba; Magdi, who had given a false address, does not know whether the case went to court.
40 Human Rights Watch's study of case files reveals that even now, while Vice Squad officers in downtown Cairo—in the precincts of Abdin, Qasr al-Nil, and al-Azbekiya, where arrests for homosexual conduct happen regularly—have a sophisticated apprehension of the law’s niceties, and prepare evidence expertly for prosecutors and courts, police in outlying areas may be less experienced. Sometimes those officers still try to frame men for practicing debauchery for money; prosecutors, understanding that the financial element is unnecessary, usually intervene to prune inessential elements from the allegation. In some cases officers may charge only “passive” partners with “debauchery” per se, and accuse “active” partners instead with “indecent assault” against the men they penetrated. Again, prosecutors ordinarily smooth out the differences and charge all under article 9(c). Fujur prosecutions have evolved gradually out of the model established by di`ara; in the hands of ill-trained officials, they lapse at times into older lineaments. For examples of such anomalies, see chapter IV below.
41 Human Rights Watch interview with Kamal (not his real name), Cairo, Egypt, March 4, 2003.