Naguib is thirty-two. He and his lover Shebl, both living in Tanta, had a relationship of seven years. Naguib is depressed and fearful. He was eager to speak to us, but asked us to change his name, though not Shebl's, in this report. He told Human Rights Watch that in early 2002, he and Shebl had befriended a fifteen-year-old boy who was effeminate and gay. “I was just trying to guide him into a path where he could feel better about himself. We were only friends.”359
The boy’s mother worked in an administrative office of the police.360 When she found out about the friendship, she went to the Vice Squad. In mid-2002 police seized Shebl and Naguib, took them to the Vice Squad, asked about their relationship—”We told them”—and warned them to stay away from the boy. “They said if we got in trouble again it would be very serious, they’d make a case to ruin us. I didn’t see the boy after that.” 361
Khalil—who has been introduced in these pages before—was a friend of Naguib and Shebl. He tells what happened one September morning, months later:
At the police station, Naguib was questioned. “They asked me again and again, ‘What was your relationship to Shebl?’ They said, ‘We remember you and we know you are a khawal.’ They asked, ‘Does he fuck you?’ I was frank, I said yes.” Officers told him, “We warned you when you were in here before. Now you are in trouble.” 363
Naguib spent the night in jail, while his family, and Shebl’s, grew desperate with fear. Khalil says, “We got a lawyer to go to the police: they told him, ‘It’s just a matter of mobile phone theft. We’ll write a report, and in the morning they’ll be at the niyaba.’”
The next morning Khalil and Shebl’s mother went to the niyaba. “We found Naguib’s sister and husband. They told me, ‘Shebl’s dead.’”364
Naguib was freed abruptly that morning. Meeting his sister and Khalil, he learned of Shebl’s death. “I couldn’t believe it. It was the greatest, the worst shock of my life. I started to scream. People in the Security Directorate came out to hear me crying. A policeman came out and said, ‘Just get him out of here.’”365
Suspicions surrounded the death from the start. A local newspaper stated:
Human Rights Watch obtained the arrest file in Shebl's case. The arrest report, which may or may not have been written before Shebl's death, alleges that Shebl was caught while “practicing sexual perversion” with another man in the stall of a public toilet; the other escaped. The report claims Shebl named him as “Naguib the bottom.”367 “Escorted” to the Vice Squad and interrogated, Shebl offered a “confession” that seems constructed to defame them both.368
The file alleges that at 4 p.m. Shebl “deceived the police bailiffs … and jumped from the window” on the fourth floor.369 Shebl's sister told Human Rights Watch,
Shebl's friends and family are convinced that Shebl was seized, under unknown circumstances, by Vice Squad officers who recognized him from the earlier incident371–and hoped to frame both him and Naguib in a “debauchery” case. Khalil told us he believes “officers had beaten Shebl and electroshocked him. And when he died in their hands, they took him in to the Vice Squad on the upper floor of the Security Directorate and threw him from the window.”372
Shebl's parents live in extreme poverty. His mother, who is blind, told us,
Shebl's sixty-four-year-old father says, “The government took him and buried him, they even provided the shroud and we were not allowed to see him.” He also told Human Rights Watch that he requested an exhumation and was refused.374
Less than three weeks after Shebl's death, Naguib was arrested again, in the roundup before the moulid in Tanta. “At the police station I remembered all of a sudden how Shebl died, and then my legs shook and I had to sit down and cry.”
Naguib was freed with the other arrestees at the moulid’send, after days in jail. He says,
B. Pressure for Proof, Power of Stigma
Naguib’s tragedy and Shebl’s nightmarish death may have been an extreme consequence of the contempt in which “khawalat” are held. In other respects, however, the story could be called typical of Egypt, where torture, and death in detention, are commonplace.377
Men who have sex with men are in no way unique victims of police abuse. However,factors peculiar to “debauchery” cases may put people like Shebl at acute risk. One such factor lies in the requirements of the repressive law.
Despite the breadth of recent arrests, criminal debauchery remains, at least in the letter of the law, difficult to prove. Producing evidence of what are presumptively private acts is daunting: yet police and prosecutors must in principle also show that a defendant committed the offending act repeatedly in a three-year period.
Shebl, in a photo taken by friends © 2004, Private
As the previous chapter shows, prejudice can supply a lurid certainty superseding the need for proof. Yet a pressure remains. Extracting a confession is the easiest way to demonstrate the “habitual practice of debauchery.” Judge Mohammed Abdel Karim, who presided at the first Queen Boat trial, stressed to Human Rights Watch that “guilty verdicts have to be based on certainty.” He cited the defendants’ confessions, and the findings of forensic anal examinations, as the surest proofs.378
The only type of torture criminalized as such in Egypt is that meant to make a suspect confess.379 Yet this form is common: and homosexual men are easy targets.
A second factor endangers debauchery suspects: the stigma of homosexuality, the “catastrophe”380 of being called a khawal.
A sense of horror has come to imbue homosexual conduct through the Queen Boat and other trials. “Crimes of sexual perversion,” papers now tell the public, “are the worst a man can commit.”381 Columnists regularly wonder, “What moral debasement has this group [homosexuals] arrived at? What kind of people are they, without religion, moral values, or honor …claiming human rights? What human? What rights?”382
Such vilification of “perverts” signals, to those with power over them, that they lie beyond the bounds not just of sympathy, but of the species. Violating their dignity and bodies becomes not a breach of civil norms but their affirmation. Men suspected of having sex with men are vulnerable to humiliations that make them seem inhuman. This climate enables and encourages—almost mandates—torture.
One Queen Boat defendant says, “Every place we were held, somebody beat us. We asked, why is it us who are getting beaten? It was like they weren’t dealing with human beings at all. … Like we weren’t even animals, just mud or something they could kick around.”383 Gamal, brutally tortured in Damanhour, told Human Rights Watch: “I want to scream. I want to cry. I can't let it out.”384
Sexual “deviance” may be punished by sexual abuse. Walid says that, during a 1998 roundup in Cairo (see chapter VI), other prisoners “would force men to have sex…. The police would say, ‘These prisoners are khawalat, you can do anything to them.’ … So prisoners would rape you. I saw it happen. The police brought it on.” 385
Guards sometimes join in such abuse. Wissam Toufiq Abyad states that, in Heliopolis police station in Cairo,
Such incidents, in lockups or on the streets, can be serious indeed. Human Rights Watch spoke with two eighteen-year-old gay men in Cairo. One said,
Another told us that in October, 2002,
Medicine is enlisted in the difficult task of proving the “habitual practice of debauchery”: and it succumbs to the same prevalence of stigma. Prosecutors routinely refer accused men to the Forensic Medical Authority for an anal examination.
The Authority is an arm of the Ministry of Justice.389 Its leaders take public pride in its work, including its documentation of torture.390 Their participation in it is a different matter. Staff of the Authority, including the director himself, routinely perform anal examinations on prisoners without consent. Invasive, intrusive, abusive, and profoundly humiliating, the examinations are themselves a form of torture, carried out in violation of international standards and professional principles. They are, moreover, based on an obsolete, nineteenth-century medical mythology about the physiological effects of anal intercourse. They are virtually valueless as investigative tools.391
Human Rights Watch interviewed both Dr. Fakhry Saleh, director of the Forensic Medical Authority, and Dr. Ayman Fouda, its deputy director, about these examinations. “When prosecuting authorities need to investigate a [debauchery] case,” Dr. Saleh told us, “we provide a medical examination known world-wide.”392 Dr. Fouda confirmed that “In this kind of investigation there are six criteria which were established by the celebrated Frenchman Tardieu.”393
Auguste Ambroise Tardieu (1818-1879), a forensic doctor, published his Étude Médico-Légale sur les Attentats aux Moeurs (“Forensic Study of Assaults against Decency”) in 1857. Its blend of scientific tenor and prurient themes made it a bestseller. The book laid guidelines for investigating three offenses: public “outrages against decency”; rape; and “pederasty and sodomy,” terms it used interchangeably for adult male homosexual acts.394
“Habitual pederasty” was a secretive, internal tendency. Yet its very skill at occluding its existence drove Tardieu to seek signs which would make it “recognizable”: the “knowledge of which will permit the forensic doctor, in the great majority of cases, to direct with sureness the pursuits which involve public morality to such a high degree.”395 Tardieu believed “pederasts” to be exclusively either active or passive. He theorized that passives showed six “characteristic signs”: “The excessive development of the buttocks; the funnel-shaped deformation of the anus; the relaxation of the sphincter; the effacement of the folds, the crests, and the wattles at the circumference of the anus; the extreme dilation of the anal orifice; and ulcerations, hemorrhoids, fistules.”396 Among these, the “infundibuliform” or funneled anus was “the unique sign and the only unequivocal mark of [passive] pederasty,” Tardieu argued.397
Tardieu's beliefs on the physiognomic effects of homosexual conduct are viewed today, when remembered, as without medical worth.398 Dr. Lorna Martin, professor of forensic pathology at the University of Cape Town, South Africa, calls Tardieu’s theory “bizarre and antiquated … rubbish.” She adds, “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.”399 However, 150 years later, Tardieu’s theories endure in Egypt, and underlie a brutal practice of bodily invasion.400
Dr. Fouda detailed the medical beliefs behind the Authority’s examinations.401
Human Rights Watch representatives questioned whether a spasm of rejection invariably accompanied penetration; Dr. Fouda insisted that “There is never consent for an erect penis to penetrate the anus … due to the instinctual reflex of rejection.”403
Dr. Fouda also spoke of “new, advanced methods” to investigate prisoners' anuses, “involving the use of electricity.”404 Dr. Fouda detailed these methods in an article he coauthored.405 A number of methodological errors beset this study.406 Several factual misrepresentations also mar the text.407 However, it should be sufficient to note that the study proposes the use of electromyography on incarcerated subjects: “the process of recording the electrical activity of muscle,” which “may be done in an unanesthetized humans [sic] by using small metal disks on the skin overlying the muscle as the pickup electrodes or by using hypodermic needle electrodes.”408 The result is a fully technologized violation of the subject's integrity, dignity, and privacy.
The same may be said of other methods of torture which Dr. Fouda described as under development, in which “We probe to investigate the state of the anal muscle and the pelvic muscle, whether they are firm or flaccid.”409 These include sonograms of the anal area, and rectal manometry, in which a tube designed to measure levels of pressure is inserted in the anus. According to Dr. Fouda, “Rectal manometry is being applied now, selectively, in the administration of these tests.”410 Researchers are pursuing and promoting sonography and electromyography “at Ayn Shams and Mansoura universities.”411
The technological elaborations of medical misconduct being contemplated at Egyptian universities are no less abusive but simply more sophisticated than what is now common practice in debauchery cases: a system in which the naked subject is made to bend while several doctors dilate, peer into, and in some cases insert objects into his anal cavity.412 Implicitly, Dr. Fouda acknowledges the similarity of the procedure, under non-consensual conditions, to the act of rape. 413 His article names the first sign of “habitual use,” or “anoreceptivity,” as the “Response to lying down order for examination, which was considered positive when the patient spontaneously lies in the proper decubitus [position on all fours] for anal examination.”414 Dr. Fouda explained that the examining position is the sexual position: “To assent quickly is a sign of having been used—we don’t describe the position to people, and if they have practiced perversion before, they assume it spontaneously because they know it.”415
The forensic anal reports, the country's Prosecutor General told us, “are very important as a means to establish criminality” in debauchery cases.416 Yet Dr. Fouda admitted that the test cannot prove criminal behavior according to the letter of the law, acknowledging “There is no way to determine through the forensic examination whether the vice is practiced ‘without discrimination,’ with multiple partners. … Circumstantial or other evidence is needed.”417 Such disclaimers, however, rarely follow the reports to court. Judges routinely take the results of forensic anal examinations at face value. Moreover, forensic medical findings that a defendant has not been “habitually used” almost invariably add an escape clause, with a version of the following language:
“Of course, this sentence,” a defendant told Human Rights Watch, “made me seem guilty even if I was not found used: and the prosecutor used it against me in the trial.”419
The head of the Forensic Medical Authority named consent and dignity as keys to carrying out anal exams, saying, “Our sole concern is to provide the test in a humane and non-degrading way, and with full respect for the right to refuse the investigation. … We always ask consent before the test. [In English]: ‘If you please, I want to examine your anus.’”420
The deputy director offered a more candid account:
Examining nearly 100 court files of men subjected to forensic anal examinations, Human Rights Watch found only one instance in which prosecutors obtained written consent.422 Meanwhile, the “implicit consent” of which Dr. Fouda spoke—for patients in detention, led to prosecutors and to the exam in handcuffs—amounts to no consent at all.
Human Rights Watch quoted Dr. Saleh's assurances to twenty-one men who had undergone the examinations. Their angry reactions speak for themselves.
One defendant from the Queen Boat case shouted when told of Saleh's words: “He is a liar! They insulted us and were very rude!”423 Another exclaimed: “Oh, they show you a lot of respect! A lot of humanity! Grabbing your neck, shoving your back, spreading your buttocks …The forensic exam—it's butchery, not a forensic exam. Those doctors treated us like pigs.” 424 Still another said:
Only two of the men Human Rights Watch interviewed explicitly spoke of insertion as part of the examination.426 One, Ziyad, was also in the Queen Boat case—and was reviled throughout because of his “effeminacy.” He said,
Even patients who said their anuses were only massaged open felt violated, and reacted furiously at Saleh's claims. “They treat us with no dignity,” one told us. “When I assumed the position, one of the doctors kept saying, ‘Don’t be tense,’ and then started thumping me on my back. He grabbed a section of my stomach and pulled it down. It was like I was a piece of meat.” 428 Others remember verbal abuse. Muharram, a Queen Boat defendant, recalls Fakhry Saleh telling him, “Stop squealing, khawal.”
Some men examined by female doctors said this reinforced the humiliation. Hossein, also from the Queen Boat case, called the examination
The doctors inflict a deep violation. The scars of “sodomy” for which they search are imaginary: the scars of the search are real. Muharram says: “The two worst times in my life were at the forensic doctor's, and after that the verdict, when he said, 'Two years.' When I sleep, every night I remember those two things. I have bad dreams.”431
359 Human Rights Watch interview with Naguib (not his real name), Tanta, Egypt, April 11, 2003.
360 Human Rights Watch interview with Khalil, Tanta, Egypt, March 21, 2003.
361 Human Rights Watch interview with Naguib, Tanta, Egypt, April 11, 2003.
362 Human Rights Watch interview with Khalil, Tanta, Egypt, March 21, 2003.
363 Human Rights Watch interview with Naguib, Tanta, Egypt, April 11, 2003.
364 Human Rights Watch interview with Khalil, Tanta, Egypt, March 21, 2003.
365 Human Rights Watch interview with Naguib, Tanta, Egypt, April 11, 2003.
366 Sayed Moussa, “In Second Such Incident, Young Man Throws Himself Out of Vice Squad Window in Gharbeya: Detectives Offer Conflicting Statements: Cause of Death Remains a Mystery,” Wafd al-Delta, October 2002.
367 Arrest report by Officer Ashraf Galal, Al-Gharbeya Security Directorate, Department of Public Morality, September 11, 2002, 2:45 p.m. Naguib and his friend Khalil, who was with him this morning, vigorously deny this story.
368 Q: What is the reason for your presence in the place of arrest with [Naguib]?
A: I’ve been married to Naguib for a long time, and I divorced my wife for that reason. …
Shebl is charged with “practicing sex and sodomy with men and inciting [Naguib] to practice debauchery.” Arrest report by Officer Ashraf Galal, Al-Gharbeya Security Directorate, Department of Public Morality, September 11, 2002, 2:45 p.m.
369 Report by Officer Ashraf Galal, Al-Gharbeya Security Directorate, Department of Public Morality, September 11, 2002, 4:15 p.m. Prosecutor Ahmed Nabil was notified at 5:30 p.m., and “decided to move to the hospital to interrogate the injured person.” (Report by Prosecutor Ahmed Nabil, 5:30 p.m., September 11, 2002.) There, the resident doctor, Sayed Rifa’i, stated that “The injured is in a complete coma and cannot be interrogated because of his dangerous condition. He has no sense of time or place. The defendant is suffering from severe bruises in the brain and a tearing in the cells of the brain, and a fracture in the skull.” Then doctors announced his death. (Report by Prosecutor Ahmed Nabil, 6:15 p.m., September 11, 2002.) Still another report records the inspection of the body: “There was blood in different places of the head, his right eye was swollen and extremely blue, the right arm was bandaged and there was a bruise on the bone of the left forearm [sic] [line missing in the copy].” (Report by Prosecutor Ahmed Nabil, 6:35 p.m., September 11, 2002.) There was no autopsy; a health inspector’s report confirms these visible marks on the corpse.
In a further inconsistency, when Egyptian human rights activists were able to interview Dr. Sayed Rifa’i, the doctor quoted in the police report, he stated that he could not remember the marks on Shebl’s body, but insisted clearly that Shebl “was already dead when he arrived”—as the family had also first been told. Shown the police report with its description of Shebl in critical condition, the doctor appeared perplexed and shaken, and said that his memory might be mistaken. Interview by the Egyptian Initiative for Personal Rights with Dr. Sayed Rifa’i, Tanta, Egypt, June 19, 2003.
371 The speculation is supported by the fact that police apparently told reporters, in a garbled version of the earlier incident, that Shebl “had sexually harassed the daughter of a high-ranking officer”: see news article above.
372 Human Rights Watch interview with Khalil, Tanta, Egypt, March 21, 2003.
373 Human Rights Watch group interview with members of Shebl's family, Tanta, Egypt, April 11, 2003.
375 Human Rights Watch interview with Naguib, Tanta, Egypt, April 11, 2003.
376 Ibid. A suit for compensation is now being pressed in Tanta courts by Shebl’s parents.
377 For further information on torture and ill-treatment in police custody, see “Charged with Being Children: Egyptian Police Abuse of Children in Need of Protection,” A Human Rights Watch Report, February 2003; Human Rights Watch, “Egypt: Human Rights Background,” A Human Rights Watch Backgrounder, October 2001; Human Rights Watch Letter to Prosecutor General Maher `Abd al Wahid, November 19, 2001; Human Rights Watch Letter to President Hosni Mubarak, November 13, 1998; Middle East Watch, “Egypt: Hostage-taking and Intimidation by Security Forces,” A Middle East Watch Report, January 1995; Middle East Watch, “Behind Closed Doors: Torture and Detention in Egypt,” A Middle East Watch Report, May 1992; U.N. Committee against Torture, “Conclusions and Recommendations: Egypt,” November 20, 2002, CAT/C/XXIX/Misc.4; World Organization against Torture and Egyptian Organization for Human Rights, “Comments on the Report of the State of Egypt Concerning the Implementation of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” November 2002, http://www.eohr.org/report/2002/omtc1.htm (retrieved December 4, 2002); and The Nadim Center for the Treatment and Psychological Rehabilitation of Victims of Violence, Torture in Egypt: Facts and Testimony (Cairo: Nadim Center, February 2002, in Arabic and English).
378 Human Rights Watch interview with Judge Mohammed Abdel Karim, March 11, 2003.
379 Article 126, Criminal Code. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by contrast, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (article 1). Egypt has ratified the Convention against Torture but has not harmonized its legislation with its provisions.
380 Human Rights Watch interview with Khaled, Cairo, Egypt, February 7, 2003.
381 Muhammad Abd Al-Mun'im Murad, column in Al-Akhbar, February 7, 2002.
382 Wagih Abu Zikri, columnist in Al-Akhbar, February 17, 2002.
383 Human Rights Watch interview with Yusuf, Cairo, Egypt, March 7, 2003.
384 Human Rights Watch interview with Gamal, Damanhour, Egypt, April 11, 2003.
385 Human Rights Watch interview with Walid, Cairo, Egypt, April 23, 2003.
386 Letter to friends from Wissam Toufiq Abyad, February 2003, copy on file at Human Rights Watch.
387 Human Rights Watch interview with Taher (not his real name), Cairo, Egypt, March 7, 2003.
388 Human Rights Watch interview with Seif (not his real name), Cairo, Egypt, March 7, 2003.
389 Established in 1931, the Authority draws on a tradition of forensic investigation active in Egypt (and derived particularly from French models) since the 1880s. The Authority has a branch in each governorate.
390 Human Rights Watch interview with Deputy Minister of Justice Dr. Fakhry Saleh,, director of the Forensic Medical Authority of the Ministry of Justice, Cairo, Egypt, February 26, 2003. Signaling the importance the government attaches to the Authority's public reputation, Dr. Saleh was a member of the official delegation to the U.N. Committee against Torture's discussion of Egypt’s periodic report in November 2002.
391 The conditions for serious medical debate about homosexuality, including coming to terms with its depathologization in standard medical practice elsewhere in the world, are tenuous at best in Egypt. For example, a state newspaper cited Dr. Ahmed Shafiq, a “professor of surgical medicine,” in 2001 about “methods of curing sexual perversion”: “The most successful among them has been cauterizing the anus, which, by narrowing the anus, makes it more painful for the passive homosexual to be penetrated, which makes the active homosexual also unable to penetrate, and causes the sexual encounter to fail. Dr. Shafiq assured us that the cauterizing treatment is not common in the Arab world because the homosexual does not expose himself, or admit his deviance, for fear of scandal.” Dr. Shafiq's remarks certainly would reinforce such reticence. (“The Manufacture of Perversion,” Al-Ahram al-Arabi, August 22, 2001.) Such statements indicate the atmosphere in which the antiquated beliefs described in the rest of this chapter can survive, and flourish.
392 Human Rights Watch interview with Deputy Minister of Justice Dr. Fakhry Saleh, Cairo, Egypt, February 26, 2003.
393 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, deputy director of the Forensic Medical Authority of the Ministry of Justice, Cairo, Egypt, February 25, 2003.
394 The Revolutionary revision of ancien regime law had decriminalized “sodomy” in France in 1791. However, article 330 of the Criminal Code promulgated under Napoleon I in 1810 continued to criminalize “public offenses against decency,” a provision which was used against suspected “sodomites” into the Second Empire, and which created pressure for medico-legal proofs of homosexual conduct. See Victoria Thompson, “Creating Boundaries: Homosexuality and the Changing Social Order in France, 1830-1870,” and William Penniston, “Love and Death in Gay Paris: Homosexuality and Criminality in the 1870s,” both in Jeffrey Merrick and Bryant Ragan, eds., Homosexuality in Modern France (New York: Oxford University Press, 1996), as well as Vernon A. Rosario II, The Erotic Imagination: French Histories of Perversity (New York, Oxford University Press, 1997).
395 August Ambroise Tardieu, Étude Médico-Légale sur les Attentats aux Moeurs, 3rd ed. (Paris: J. B. Bailliere, 1859), p. 135.
396 Ibid., p. 142-43.
397 Ibid., p. 143: so much so that in later editions he added language stressing that this “deformity—which “results, in part, from a gradual driving back of the parts which are situated at the fore of the anus, and, in another part, from the resistance which the upper extremity of the sphincter poses to the complete insertion into the rectum”—is “a nearly constant, unsurpassably conclusive sign of the passive habits of pederasts”: Tardieu, Étude Médico-Légale sur les Attentats aux Moeurs, 5th ed. (Paris: J. B. Bailliere, 1867), pp. 201-02. Meanwhile, active pederasts showed deformations of the penis to correspond to this cone: either a slim, attenuated member, or a glans tapered like “the snout of certain animals.” Ibid., pp. 154-56.
398 Vernon Rosario, a fellow at the Neuropsychiatric Institute of the University of California, Los Angeles, writes of Tardieu's intellectual milieu that “it was commonly feared that, thanks to secret signs, pederasts of all classes could recognize each other even more easily than they could be recognized by doctors. … [Tardieu's work] betrays a variety of conceptual tensions reflecting these anxieties provoked by pederasts. These deceitful debauchees could only be detected by knowledgeable doctors, yet they possessed a mysterious means of identifying one another.” Vernon A. Rosario II, The Erotic Imagination: French Histories of Perversity (New York, Oxford University Press), 1997.
399 E-mail communication to Scott Long, Human Rights Watch, from Dr. Lorna Martin, July 23, 2003. Dr. Robert Nye, a historian of sexology, told Human Rights Watch that “The famous six ‘signs’ of passive sodomy were questioned and disregarded by the very next generation of forensic doctors and sexologists.” He called Tardieu “utterly discredited,” and the Egyptian examinations “horrific in the extreme.” E-mail communication to Scott Long, Human Rights Watch, from Professor Robert Nye, Department of History, Oregon State University, July 18, 2003.
400 Determining the terms and circumstances of Tardieu's reception in Egypt lies beyond the scope of this work. His writings were certainly disseminated as part of the enthusiasm for French hygienic, medical, and forensic science beginning in the second half of the nineteenth century. The first citation of Tardieu we have found in an Egyptian work lies in Dr. Hassan Pasha Hassan, (Public Health Inspector), al-Tebb al-Shar’i [Forensic Medicine] (Cairo: al-Matba’a al-Tebbeyya al-Durreyya, 1st ed. 1876, 2nd ed. 1889), p. 6: Tardieu was a patron of the doctor's studies.
401 Dr. Fouda described the birth of his own avidity for the subject: “A man was accused in court of killing someone. This was the case that stimulated my interest in the question. He claimed self-defense, because the murdered man was a homosexual who had had tried to have sex with him, and he said that [he] was not a homosexual. So it was important to determine whether he was lying, whether he had been used anally.” (Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003.) Dr. Fouda appeared to take for granted that discovering the man was “unused” would vindicate his claim that the killing was in self-defense—thus endorsing the validity of violence as a response to homosexual desire. At the genesis of the doctor's professional inquiry lay the discriminatory denial of the basic rights, and legal equality, of men who have sex with men.
402 Ibid. Precisely these Tardieu-derived terms and “marks” routinely recur in Egyptian medical reports that a prisoner has been “used.” For example: “the anal reflexes were weak” (from a forensic report by Dr. El-Sabaie Ahmed El-Sabaie, August 21, 2002, in court file, Agouza Court of Misdemeanors, on file at Human Rights Watch); “the anus is funnel-shaped and surrounded by special changes” (from a forensic report by Dr. Soad Abdel Ghaffar, October 16, 2002, in court file, Qasr al-Nil Court of Misdemeanors, on file at Human Rights Watch); “the tissue around the anus had no folds in some parts” (from a forensic report by Dr, Hassan Abdel Khaled, April 14, 2002, in court file, Abdin Court of Misdemeanors, on file at Human Rights Watch).
403 Ibid. In response to this assertion that anal sex always resembles rape, we asked whether the forensic examination could distinguish between “signs” of penetration by a penis, and those of penetration by another object, such as a dildo. (The question is legally significant, since only the first form of penetration is criminalized.) The signs would differ measurably, Dr. Fouda stated, “because then there is consent.”
404 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, February 25, 2003.
405 Eassa M. A. Eassa, Nabil M. Khalel, Naemat F. Hamed, Ayman A. M. El-Sawy, and Ayman Fouda, “Electromyographic Study of Some Cases of Anorectal Intercourse,” Journal of Legal Medicine and Forensic Sciences, Egyptian Society of Forensic Medical Sciences, Vol. 10, No. 4 (October 1998), pp. 385-399.
406 The study involves thirty “anoreceptive intercourse (ARI) cases of both sexes,” twenty males and ten females (although the abstract lists the total number as twenty) referred to the Cairo Forensic Medical Authority (FMA); they are compared to a control group consisting of “10 healthy non-anoreceptive subjects.” According to Dr. Fouda, the men were referred to the FMA after arrest in debauchery cases; the women were referred in divorce cases, where “a woman comes and alleges that her husband has used her in anal intercourse, and she is entitled to divorce.” (Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003.) These different situations obviously gave participants different degrees of interest in truthfully answering an initial questionnaire that included queries on “sexual practice of anal intercourse; date of first anal intercourse; number of frequency of anal intercourse.”
Dr. Fouda explained that “Some of the men referred to us by niyaba order were only alleged passive homosexuals, some really passive homosexuals. We inspected them all. Those who were not used, who did not exhibit the signs according to Tardieu, we reexamined as a control group; those who were found used we reexamined as our group of people who were habitually used.” (Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003.) Thus the ARI status of the men was determined by an initial, standard examination looking for the Tardieu criteria: “Inspection of the anus as regards: site and shape of anus (normal or funnel shape); skin corrugations around the anus … anal fissure, anal tear… tenderness on touching or stretching, painful contraction, twitchy anus i.e. alternating contraction and relaxation of the sphincter, yielding of anal orifice on stretching “Diameter by finger or cm.,” anal sphincter (weak or normal), anal reflex (weak or normal), anorectal mucosa and presence or absence of anorectal mucosal folds” (p. 387). They were then re-examined by the same method, to determine whether they showed the signs of ARI (“deeply seated” and “funnel shaped” anus). Since the ARI group had been selected by the same standards which were then tested on them, it is unsurprising that the correlation rate was high. The subjects, divided thus unreliably into “ARI” and “control” sets, were then re-tested with electromyographic mapping, as explained above.
407 The study is described as “prospective” (p. 396) itself a misrepresentation—a truly prospective study would examine the same subjects both before and after anal intercourse. The article asserts as a given (p. 386) that “Regular anoreceptive intercourse (ARI) involves potential trauma to the anal sphincter complex”—precisely the point that it should set itself to prove, and which it nowhere demonstrates adequately. Indeed, the article which it cites to this effect actually reaches the opposite conclusion. That study, which employed anal manometry to investigate ARI and non-ARI subjects, finds that “No disruptions of the IAS [internal anal sphincters] or EAS [external anal sphincters] were identified in either the anoreceptive or control group. Anoreceptive men tended to have thinner anal sphincters than controls, but the difference was not statistically significant. Furthermore, there were no complaints of fecal incontinence by the study subjects [emphasis added].” (A. B. Chun, S. Rose, C. Mitrani, A. J. Silvestre, and A. Wald, “Anal Sphincter Structure and Function in Homosexual Males Engaging in Anoreceptive Intercourse,” American Journal of Gastroenterology, Vol. 92, No. 3 [March 1997], pp. 465-68)
In another misrepresentation, Fouda et. al.'s article also cites a study which it claims proposes “a 'triad' of signs that would be confirmatory of frequent anal intercourse” (p. 396). The citation implies that these signs would “confirm” consensual anal receptivity by an adult; in fact, the study in question is one of forced sexual abuse of children. (A. R. Jong, “Genital and Anal Trauma,” in Stephen Ludwig and Allen E. Kornberg [mis-cited as “Komberg” in the article], Child Abuse (London: Churchill Livingstone, 1991).
408 Fouda et. al., “Electromyographic Study of Some Cases of Anorectal Intercourse,” p. 397. Dr. Fouda was at pains to stress that these technological methods did not supersede the antiquated standards of Tardieu, merely elaborated on them: “We don’t discard Tardieu’s criteria, and I do not mean that the funnel-shaped anus is not a sign of habitual use. I mean that electromyography is more exact.” Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003. In response to this article, Professor Nye told Human Rights Watch, “I have never heard of such a wild notion” as mapping the electrical conductivity of anal tissue. E-mail communication to Scott Long, Human Rights Watch, from Professor Robert Nye, July 18, 2003.
409 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, February 25, 2003.
410 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003.
411 Ibid. Human Rights Watch learned that Dr. Siham Fouad Abdel ‘Al, a professor at Ayn Shams University in Cairo, oversaw dissertation research on detecting “sodomists” by these methods, by Mohammed Mohieddin al-Gamal, a student who also worked as a doctor at the Forensic Medical Authority in Mansoura. This research detailed the possibilities of both sonographic and electrical investigation of “debauchery” suspects’ anal cavities. Both refused to speak to Human Rights Watch. In a telephone conversation on March 12, 2003, Mohammed Mohieddin al-Gamalstated that Human Rights Watch needed to gain approval from both State Security and the Ministry of the Interior before he could describe his work. His dissertation, titled (in English) “Medicolegal Assessment of the Anal Sphincter Functions in Sodomists,” was presented at Ayn Shams University on April 2, 2003. At this writing this disturbing document has not yet been made available to the public.
412 It was clear from our conversations with Dr. Fouda that, far from medical objectivity, moral disdain underlay his approach to these cases. He stressed, “In Egypt, sexual relations between men are prohibited. It is a question of our society, its basic values. [In English]: The Christian religion prohibits heterosexuality [sic] and sodomy. So does the Quran. Every country puts down laws in accordance with its religion.” Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, February 25, 2003.
413 There is a clear parallel between such examinations and the practice of forced examinations of women's virginity: see “A Matter of Power: State Control of Women's Virginity in Turkey,” A Human Rights Watch Report, June 1994. Dr. Fouda himself raised this parallel, noting that virginity tests are part of the Forensic Medical Authority's mandate. Human Rights Watch interview with deputy minister Dr. Ayman Fouda, Cairo, Egypt, February 25, 2003.
414 Fouda et.al., “Electromyographic Study of Some Cases of Anorectal Intercourse,” p. 387.
415 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, April 3, 2003. Dr. Fouda's confidence in the cogency of a prisoner's assuming the position echoes Tardieu himself. Tardieu writes, “When I perform [the examination]—as is most commonly the case—in a prison, I refrain by design from indicating to the prisoner the object of my visit; I command him to undress, and very often, without further ado, he takes spontaneously the position most favorable to my inspection. I guard myself carefully against concluding anything positive from such a way of acting; but it is something significant …” Tardieu, Étude Médico-Légale sur les Attentats aux Moeurs, 3rd ed. (Paris: J. B. Bailliere, 1859), p. 158.
416 Human Rights Watch interview with Counsellor Maher ‘Abd al-Wahid, Prosecutor General, February 26, 2003.
417 Human Rights Watch interview with Deputy Minister of Justice Dr. Ayman Fouda, Cairo, Egypt, February 25, 2003
418 From a 2003 forensic report in court file, al-Giza Court of Misdemeanors, on file at Human Rights Watch; comparable instances could be cited from many files.
419 E-mail communication to Human Rights Watch from Mahmoud (not his real name), April 13, 2003. Dr. Fouda told Human Rights Watch that in debauchery, “Both partners are criminalized, and we investigate the active partner also.” In fact, checking the penis as well as the anus is infrequent, even for men suspected of being “active” partners. Despite Tardieu's interest in “active” as well as “passive” “pederasts,” the Forensic Medical Authority still primarily probes for evidence of penetration, as if it has not fully comprehended the criminal penalties (or the shared identity and stigma) incurred by active partners.
However, Bassam, the bodybuilder from the Queen Boat case, had a different experience. Throughout that case, his muscular appearance struck authorities as discordant with the accusation of debauchery—even “active debauchery.”During the forensic examination, doctors did inspect his penis. Yet, he recounts, at the end of his exam, Fakhry Saleh “just glanced at me,” and, apparently impressed by his masculinity, said, “I bet my life he is OK”—whereupon Bassam was found “unused.” Human Rights Watch interview with Bassam, Cairo, Egypt, February 26, 2003. Despite this result, Bassam was convicted, in a judicial recognition of the culpability of active partners—although he was the only defendant to receive a one-year sentence.
There is at least some suggestion that forensic doctors may make snap judgments in the opposite direction, simply inferring that a prisoner is “used” from an “effeminate” appearance and thus lending supporting evidence for his conviction, though sparing him the invasive formalities of an examination. The following dialogue occurs in the prosecution interrogation record of one Queen Boat defendant:
Interrogation report by State Security prosecutor Mohammed al-Faisal, June 6, 2001, 1:20 PM.
420 Human Rights Watch interview with Deputy Minister Dr. Fakhry Saleh, Cairo, Egypt, February 26, 2003.
421 Human Rights Watch interview with Deputy Minister Ayman Fouda, Cairo, Egypt, February 25, 2003, emphasis added. One important commentary on forensic medicine and law states about the “the patient’s acceptance of inspection”: “A doctor has no right to inspect any person upon the request of his/her superior or any state employee, whether police or otherwise, except after the acceptance of the patient. Even a judicial order in this regard does not authorize the inspection because the judge has no right to issue an order that violates law. The consent of the patient must be taken first, otherwise the doctor would be liable to prosecution for assault.” Sydney Smith and ‘Abdel Hamid ‘Amer, al-Tebb al-Shar’i fi Misr [Forensic Medicine in Egypt] (no publisher, 1924), p. 31.
422 The instance is in fact the exception that proves the rule: the case was that of “Ahmed” (described in chapter VI above), who was not yet a defendant for debauchery, but still the victim in a case of attempted murder—and therefore, evidently, received more respectful treatment from the prosecutor. The consent comes in the form of an interchange in the interrogation record, which Ahmed signed:
Case number suppressed to protect Ahmed's identity; the documents are on file at Human Rights Watch.
423 Human Rights Watch interview with Murad, Cairo, Egypt, February 25, 2003.
424 Human Rights Watch interview with Bashar, Cairo, Egypt, February 26, 2003.
425 Human Rights Watch interview with Wahba, Cairo, Egypt, March 3, 2003.
426 However, Yehya, arrested in the Giza case, told Human Rights Watch, “The doctor asked me to pull my pants down, and dragged his finger along the line between my buttocks, over my anus. But other people [arrested in the case] … told me he put his finger inside, after massaging the buttocks.” Human Rights Watch interview with Yeyha, Cairo, Egypt, April 30, 2003. Sabir, from the Tanta case, described seeing two “metal dildos” in a tray while doctors performed his forensic exam, along with an object which, as he described and drew it for a Human Rights Watch researcher, resembled a rectal manometer. Human Rights Watch interview with Sabir, Tanta, Egypt, March 8, 2003.
427 Human Rights Watch interview with Ziyad, Alexandria, Egypt, February 28, 2003.
428 Human Rights Watch interview with Rashid, Cairo, Egypt, March 4, 2003.
429 Human Rights Watch interview with Muharram, Cairo, Egypt, February 21, 2003.
430 Human Rights Watch interview with Hossein, Cairo, Egypt, March 4, 2003
431 Human Rights Watch interview with Muharram, Cairo, Egypt, February 21, 2003.