29 February 2004
Egypt is carrying out a crackdown. The professed motive is cultural authenticity coupled with moral hygiene. The means include entrapment, police harassment, and torture. The agents range from government ministers to phalanxes of police informers fanning out across Cairo. The victims are men suspected of having sex with men. The violence is aimed not only at their loves but at their lives.
Since early 2001, a growing number of men have been arrested, prosecuted, and convicted for having sexual relations with other men. Human Rights Watch knows the names of 179 men whose cases under the law against “debauchery”Footnote* were brought before prosecutors since the beginning of 2001; in all probability that is only a minuscule percentage of the true total. Hundreds of others have been harassed, arrested, often tortured, but not charged.
The severity of the brutality inflicted indicates the crackdown's intensity. Police routinely torture men suspected of homosexual conduct, sometimes to extract confessions and sometimes simply as a sadistic reminder of the burden of shame their alleged behavior incurs. Men have told Human Rights Watch how they were whipped, beaten, bound and suspended in painful positions, splashed with ice-cold water, and burned with lit cigarettes. Men taken during mass roundups may be tortured with electroshock on the limbs, genitals, or tongue. Guards encourage other prisoners to rape suspected homosexuals. Psychological torment complements the physical trauma. One man, showing the scars of excruciating torture on his limbs, said: “I want to scream. I want to cry. I can't let it out.”
Egypt enlists medicine to join the maltreatment. Men arrested for homosexual conduct are forcibly subjected to anal examinations at the hands of the Forensic Medical Authority, an agency of the Ministry of Justice. Doctors compel the men to strip and kneel; they massage, dilate, and in some cases penetrate the prisoners' anal cavities in search of signs that they have been “habitually used” in “sodomy.” Invasive, abusive, and a form of torture in itself, the practice is predicated on outdated pseudoscience, on myths of the “marks” left by anal intercourse, which date back nearly a century and a half. Yet doctors continue to invent means of investigating prisoners' anuses, boasting to Human Rights Watch of “new methods” employing electricity.
May 2001 saw the best-known case in the crackdown begin: fifty-two men ultimately went to trial, many arrested during a police raid on a Cairo discotheque, the “Queen Boat,” frequented by gay men. The proceedings, less judicial exercise than extravaganza, accused the men, most of whom did not even know each other until their jailing – not just of dissident desires but of participating in a blasphemous conspiracy. Sensational headlines savaging them as “Satan-worshippers” and “sexual perverts” filled the papers for months. They spread a new image of homosexual conduct: no longer a private matter but a menace to public safety, the code of a cult eroding moral values, a subversive network threatening state security.
The hysteria made the “Queen Boat” case the most public episode in the campaign, and it indeed comprised a watershed in some ways. Before the headlines, Cairo had the tentative beginnings of a community of men who desired other men – people who perceived a commonality among one another, and sometimes (though not always) described themselves as “gay”. A few pubs and meeting-places, circles of friends who shared stories and talked about the meanings of their desires – these were the substance of that incipient solidarity, which remained largely invisible to others, and neither challenged any authority nor impinged perceptibly on the public sphere. The scandal and scare tactics around the trial, the paranoia the press evoked, shut that inchoate community down. Friendships died and solitude set in.
Yet the Queen Boat trial, for all its consequences, marked neither commencement nor climax of the crackdown. Even before the bar raid, agents of the Vice Squad (a morals police within the Ministry of Interior's national police force, with divisions in each jurisdiction) had started surveillance of the Internet, answering personals advertisements placed by men seeking men, arranging meetings with them, and arresting them. Internet entrapment has expanded till by early 2003 it appeared to reach a rate of at least one arrest a week. It both builds on and reinforces the growing fragmentation of friendships and atomization of trust. Warnings of danger, words of caution, no longer move through shattered circles of increasingly suspicious men. Having closed down places where community could be affirmed and communication could happen, police are now in position to pick off men one by one.
In other cases, police in Cairo and elsewhere have raided private apartments, or wiretapped phones to collect and arrest contacts, or used “trusted secret sources” to finger men suspected of homosexual conduct. Vice Squads maintain lists of homosexuals; massive roundups may follow if a gay man is murdered, with dozens or even hundreds arbitrarily detained. The victims are interrogated and tortured, sometimes for weeks. An extensive network of informers supports the crackdown, feeding names and information to avid authorities. One Vice Squad officer in the Giza section of greater Cairo has informers invite guests to parties, then hand them over to the police: Human Rights Watch has documented twenty-three arrests accomplished by that officer alone.
Egypt's government has publicly claimed that the surveillance and suppression of homosexual conduct defend its cultural values, its “unique norms and evolving practices.” Yet torture and entrapment, the key tools of the campaign, are not defensible norms or values. They insult the dignity and integrity of the human being. They break the bonds of trust that culture and religion protect.
Not cultural inheritance but an ineptly written law underlies the crackdown. Egyptian officials have deceptively claimed that the country codifies “no distinction or discrimination based on a person's sexual orientation”. In fact, as Human Rights Watch shows in this report, legislation originally meant to penalize prostitution swelled, during its drafting, into a sweeping instrument punishing “promiscuity” in general. The law is now clearly understood to criminalize consensual, non-commercial homosexual conduct, under the name of “debauchery” (fujur), in provisions which work comparably to so-called “sodomy laws” in other jurisdictions. A growing roster of states rejects such laws as intolerable assaults on privacy and equality, and as breaches of international human rights protections.
A law without distinct limitations lent opportunity to a criminal justice system under diminished restraint. Both activists and commentators in Egypt have called alarmed attention to the failure of oversight of police and prosecutors in the last decade, as well as the deterioration of judicial expertise and independence. Criminal justice now serves less to uphold the rule of law than to enforce brutal social control. The spread and routinization of torture – the degree to which police abuse has become not the exception but the rule – reveals a crisis in Egyptian justice.
The physical and psychological cruelty meted out to men who have sex with men is only one aspect of this crisis. Yet it foregrounds the factors which both allow abuse to spread and create particular vulnerabilities to it. Vicious campaigns of vilification in the state-owned media foster ideas of homosexuality as a national danger: no paper protections against official abuse deter authorities from using any available means against the menace. Police brutalize victims and fake reports. Prosecutors press charges based on a defendant's looks or walk, the style of his hair or the color of his underwear. Judges rule by rote, regardless of whether evidence is fraudulent – or even whether it adds up to the elements of a crime according to the letter of the law.
The arbitrary is the usual: torture becomes normal. The attacks on individuals are also an assault on the abstract principles that cement society. The victims' shattered dignity reflects the degradation of justice.
Creating a moral panic
The question “why” remains. Arrests did not begin in 2001. As this report shows, the law used against homosexual conduct dates from five decades earlier. Harassment of men who had sex with men had been happening for a long time before the Queen Boat case, on a smaller scale, and often not ending in prosecution.
In Cairo, police had routinely carried out campaigns against various populations whose public presence detracted from the capital's preferred image. Street hawkers, street children, and sex workers recurred as victims. The next chapter demonstrates that men having sex with men had joined such groups at least by the late 1990s: the Vice Squad targeted them on Cairo's streets. This mounting harassment apparently drew energy from the violent animus of the Squad's head in Cairo, Taha Embaby.
At the same time, and on a broader level, Egypt's government has increasingly manipulated moral panics – sensationalized scandals in which groups are singled out for stigma, and made focal points of popular fears and resentments. In the late 1990s, a series of such panics filled the press; Shi'ites and teenage rock fans became, at various points, unlikely victims of vilification as “Satanists” and conspirators.
These panics served multiple purposes. On the one hand, they diverted the media from the mounting crises of a political system mired in inaction and mass immiseration, unable to address growing poverty or popular discontent. On the other hand, they served up sinister enemies – often literally demonized, smeared as offenders against religion-to be blamed when that discontent demanded scapegoats. And a government that routinely repressed religious fundamentalism could improbably recast itself as defending orthodoxy from the blandishments of organized deviance.
The Queen Boat arrests sparked another panic, on a scale to stun and fascinate citizens for months. The state exploited sexuality as sideshow: but the prurient spectacle strengthened its Puritan credentials. As an Egyptian writer contends, the government skillfully used the sensation not just “to divert public attention from economic recession and the government's liquidity crisis,” but “to present an image as the guardian of public virtue, to deflate an Islamist opposition movement that appear[ed] to be gaining support every day.”
Politics thus bolstered police practice. The moral panic and the quieter clean-up campaigns met. The Queen Boat scandal let the state assert its power over a figurative form of customs control: the authority, unchecked by irritant claims of privacy or freedoms, to patrol cultural borders and to excise what it found unacceptable even in the recesses and reticences of intimate life. It also reinforced local policemen's perception that homosexual conduct was a lurid and immediate enemy – and gave officers across the country every incentive to step up raids and intensify harassment.
The results have multiplied the arbitrary arrest and torture of men who have sex with men. Despite the publicity the Queen Boat case garnered, many of the most serious abuses have gone unreported until now. Even the cases Human Rights Watch has uncovered undoubtedly represent only a fraction of the whole. It is time for the detentions and prosecutions, the torture and betrayals, to stop.
Legal standards
Egypt's campaign against homosexual conduct strikes at the most intimate relations between human beings. It embodies an extreme form of legally enforced inequality. It sets a dangerous precedent for arbitrary and discriminatory treatment. Its official defenders degrade the promises of legality enshrined in international covenants as well as in Egypt's constitution, by implying that basic rights are subject to a popularity contest. It expands and deepens existing serious violations of the right to privacy; the rights to freedom from torture, arbitrary arrest and detention; and the rights to a fair trial and to liberties of association, assembly, and expression. As such it threatens the freedoms of all Egyptians.
That Egypt's Law 10/1961 (the “debauchery” law) is meant, and used, to criminalize consensual sexual activity between adult males can no longer be questioned. That laws so written and enforced stand in breach of the right to privacy is an established principle of international human rights law. In addition, such laws also violate Egypt's constitutional protections of the sanctity of homes and “the inviolability of the private life of citizens.”
In the 1994 case of Nicholas Toonen v Australia, the UN Human Rights Committee, which monitors compliance with and adjudicates violations under the International Covenant on Civil and Political Rights (ICCPR), held that “sodomy laws” punishing consensual, adult homosexual conduct violate article 17 of the ICCPR, which protects the right to privacy. It also held that they violate ICCPR protections against discrimination.
Egypt's Constitutional Court has affirmed the importance of privacy protections:
“There are areas of private life that represent for each individual impenetrable depth. These areas should not be violated, in order to guarantee its secrecy and protect its inviolability… While some constitutions do not ensure this right expressly, some consider it one of the most sweeping and comprehensive rights. It is also the right most deeply related to the values promoted by civilized nations.”
An emerging body of domestic jurisprudence in several countries addresses this. It articulates a conception of privacy as more than a negative right limiting state interference or a space defined by the absence of intrusion. This jurisprudence affirms that privacy is a sphere where people choose and construct their lives for themselves, enjoying precisely that intimacy and autonomy which are conditions for their full, mature, and independent participation in public life, community, and culture. This broad conception of privacy has been eloquently expressed in post-apartheid South Africa.
South Africa's Constitutional Court has held that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one's autonomous identity… In the context of privacy this means that it is… the inner sanctum of the person such as his/her family life, sexual preference and home environment which is shielded from erosion by conflicting rights of the community.” In a major decision overturning “sodomy laws” in that country, the Constitutional Court found that:
“Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”
“Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, stigma and punishment. At best, it celebrates the vitality that difference brings to any society… The acknowledgement and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognizing and accepting people as they are…. The invalidation of anti-sodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality.”
In its decision in Toonen v Australia the UN Human Rights Committee also found laws criminalizing consensual sexual acts between adults of the same sex to violate protections against discrimination. Specifically, the Committee held that “the reference to ‘sex’ in articles 2, para 1, and 26 is to be taken as including sexual orientation”. The Human Rights Committee has thus urged states to bar discrimination based on sexual orientation.
Achieving equality means eliminating stigma. The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has observed the relationship between sodomy laws, stigma, and violence:
“The Special Rapporteur… believes that criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.”
Postscript: arrests and harassment continue
According to two news items on GayLawNet, in February 2008, as part of an ongoing campaign, it was reported that police in Cairo arrested four men on suspicion of having HIV. In April 2008, five men were sentenced to three years in prison in Egypt for consensual homosexual acts.Their convictions were the latest in what has been characterised by human rights groups as “a police crackdown” on people living with HIV/AIDS.Footnote*
Letter regarding arrests and prosecutions of people living with HIV/AIDS
6 April 2008
We are 117 human rights organizations based in 41 countries around the world, working in the fields of health and human rights. We write you urgently to voice concern over the arrest and trial of men in Egypt for alleged homosexual conduct, apparently based on men's suspected HIV serostatus. We are concerned that medical personnel may have been complicit, or actively participated, in acts violating the international norm prohibiting torture and other cruel, inhuman, or degrading treatment or punishment. We are further concerned that the Ministry's involvement with the detention and interrogation of suspects in these cases condones or gives credit to myths about HIV/AIDS, in a way that is incompatible with the Ministry's public health responsibilities and can only contribute to the epidemic's spread.
We are profoundly disturbed by these arrests and by the destructive attitudes they display. We urge you, as custodians of public health in Egypt and as leaders in the national struggle against AIDS, to affirm in your statements and, more importantly, to embody in your actions the reality that respecting human rights is the way to protect health.
In the last four months, Cairo police have arrested at least twelve men in an apparent campaign against people whom authorities suspect of being HIV-positive.
This crackdown began in October 2007, when police stopped two men having an altercation in downtown Cairo. After one told the police he was HIV positive, police arrested both of them, charged them with the “habitual practice of debauchery,” beat them and coerced them to sign confessions, and interrogated them to extract the names of contacts, thus beginning the ongoing wave of arrests.
Doctors employed by the Ministry of Health and Population subjected the men to HIV tests without their consent. Doctors from the Forensic Medical Authority forcibly subjected the men to intrusive, medically valueless, and abusive forensic anal examinations to “prove” they had engaged in homosexual conduct. All those testing positive for HIV were held in Cairo hospitals, chained to their beds, until February 25, when it appears that an order was given to remove their handcuffs. One man reports that a prosecutor informing him that he was HIV positive told him, “People like you should be burnt alive. You do not deserve to live.”
A Cairo court convicted four of these men on January 13, 2008 under Article 9(c) of Law 10/1961, which criminalizes the “habitual practice of debauchery (fujur)” – a term used to penalize consensual homosexual conduct in Egyptian law. According to defense attorneys, the prosecution based its case on the coerced and repudiated statements taken from the men, without providing witnesses or other credible evidence to support the charges, which all the men denied. On February 2, 2008, a Cairo appeals court upheld their one-year prison sentences. Five more men were indicted on March 4 and face trial on April 9. Charges were dropped against the remaining three.
It is evident from this case that the Ministry of Health and Population has failed both to protect the rights of patients under its care, and to help ensure police and criminal justice authorities do not act on the basis of false information about HIV prevention and transmission.
We are grateful for the removal of chains from those kept in hospitals, as well as the dropping of charges against a small number of those arrested. However, we note that court files in the case initially contained a questionnaire from the Ministry of Health and Population, titled “A questionnaire for patients with HIV/AIDS.” It includes “yes” or “no” questions evidently used by doctors from the Ministry in this case to gather information from the men about whether they had sexual relations “with the other sex” or “with the same sex,” or “with one person” or “with more than one person.” Its inclusion suggests not only that private, patient information which should be confidential is shared with law enforcement, but that it may have been used by the prosecutors as evidence against the men. Information gained from patients should not be submitted in a criminal proceeding that itself violates human rights standards.
We recall that:
International law forbids discrimination on the basis of real or perceived HIV serostatus. Detaining people on the basis of their declared HIV status and testing them without their consent for HIV infection violate the prohibition of discrimination and the right to bodily autonomy.
As Human Rights Watch has documented in its research on Egypt, forensic anal examinations to detect “evidence” of homosexuality are medically spurious, and, conducted without consent under conditions of incarceration, constitute torture.
Beatings and physical abuse of people in detention also violate international legal prohibitions of torture and other ill-treatment. The United Nations' “Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” state that it is a “gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.”
Criminalizing consensual, adult same-sex sexual conduct violates Egypt's obligations under international human rights law to respect and protect individual privacy and personal autonomy. The imprisonment of individuals for actual or alleged consensual same-sex relations between adults in private is a serious violation of human rights, and individuals held solely on that basis are victims of arbitrary detention who should be immediately and unconditionally released.
We urge you to:
Support the setting aside of the convictions of four men already sentenced for the “habitual practice of debauchery,” and the immediate release and dropping of these charges against all others still facing trial.
Seek a cessation of police and prosecutors conducting arbitrary arrests based on HIV status.
Call for the repeal of Article 9(c) of Law 19/1961, the enforcement of which only drives groups vulnerable to the HIV/AIDS pandemic underground and beyond the reach of prevention or treatment.
Ensure that personnel affiliated with the Ministry of Health and Population, or the National AIDS Program, neither condone nor participate in torture, ill-treatment, or criminal interrogations of detainees, and immediately report any instances of torture or ill-treatment to the appropriate authorities.
End the practice of chaining detainees in need of medical attention to their hospital beds.
End the practice of forcible HIV testing of detainees without full, informed consent. Ensure that all persons who test positive for HIV receive appropriate and immediate counseling as well as treatment.
End the practice of forensic anal examinations for spurious traces of same-sex sexual conduct.
Ensure that all detainees receive the highest available standard of medical care for any serious health conditions.
Provide training to all criminal justice officials on medical facts and international human rights standards in relation to HIV.
Note
Excerpts from In a time of torture are reprinted from the Human Rights Watch website, under the Creative Commons Agreement. Full document at: <www.hrw.org/en/node/12167/section/1>. © 2004 Human Rights Watch. Letter regarding arrests and prosecutions of people living with HIV/AIDS is reprinted from the Human Rights Watch website, without the names of the signatories, under the Creative Commons Agreement. At: <www.hrw.org/en/news/2008/04/06/letter-regarding-arrests-and-prosecutions-people-living-hivaids>. © 2008 Human Rights Watch. A description of the relevant Egyptian laws and quotes in footnoted sources were added by the RHM editor.
Notes
* Law 10/1961 on “Combating of prostitution, incitement and its encouragement”. According to <http://new.ilga.org/ilga/en/countries/EGYPT/Law>: “Sexual relations between consenting adult persons of the same sex in private are not prohibited as such. However, Law 10/1961, aimed at combating prostitution, as well as for example Penal Code article 98w on “Contempt for Religion” and article 278 on “Shameless public acts” have been used to imprison gay men in recent years.” Accessed 17 August 2009.
* At: <http://www.gaylawnet.com/laws/eg.htm>. Accessed 17 August 2009.