Forced anal exams, used in eight nations as a means to assess if men had anal sex, will come under scrutiny in a Kenyan court this week.
Two men, known only as C.O.I. and G.M.N., have filed a constitutional petition, which will be heard on Wednesday in the Mombasa High Court, challenging the tests.
They claim that doctors at Madaraka Hospital, in collaboration with law enforcement officials, violated their rights by subjecting them to forced anal examinations, HIV tests, and other blood tests in February 2015, while they were in police custody on homosexuality charges.
Same-sex sex is illegal in Kenya, with penalties of between five to 14 years in prison.
Under international law, forced anal examinations are a form of cruel, inhuman, and degrading treatment that may amount to torture, said Human Rights Watch.
“Anal examinations prove nothing, and they accomplish nothing, other than humiliating and demeaning people who are considered moral ‘outcasts,’” commented Neela Ghoshal, senior researcher on LGBT rights at Human Rights Watch. “It’s frankly shocking to see such archaic methods used in Kenya in the 21st century.”
Human Rights Watch has documented the use of forced anal examinations in eight countries since 2010: Cameroon, Egypt, Kenya, Lebanon, Tunisia, Turkmenistan, Uganda, and Zambia.
The exams usually involve doctors or other medical personnel inserting their fingers, and sometimes other objects, into the anus of the accused. In other cases, men are ordered to strip naked and bend over or lie down with their feet in stirrups while doctors “visually” examine their anal regions.
Law enforcement officials and some medical personnel claim that by forcibly penetrating or otherwise examining the anuses of men accused of homosexuality, they can determine the tone of the anal sphincter or the shape of the anus and draw conclusions as to whether these men have engaged in homosexual conduct.
The United Nations special rapporteur on torture and cruel, inhuman or degrading treatment stated in a January report that the practice “is medically worthless and amounts to torture or ill-treatment”.
Forced anal exams violate the Convention against Torture, the International Covenant on Civil and Political Rights, and the African Convention on Human and Peoples’ Rights – all treaties that Kenya has ratified. Under international law and Kenya’s Sexual Offenses Act, if the exams involve any form of unwanted penetration, they constitute sexual assault and possibly rape, explained Human Rights Watch.
“Anal examinations to ‘detect homosexuality have no scientific value, are unethical, and constitute cruel, inhuman and degrading treatment and possibly torture,” said Dr. Vincent Iacopino, medical director at Physicians for Human Rights. “Sexual identity and orientation is not a disease or a crime and health professionals have no business diagnosing it or aiding State officials in policing and punishing people on the basis of their sexuality.”
In Lebanon, the Lebanese Order of Physicians issued a circular in 2012 prohibiting medical personnel from conducting anal examinations, which they described as a clear violation of medical ethics. The justice minister followed suit, calling on prosecutors to stop ordering anal exams on men accused of homosexuality.
Although Human Rights Watch research has found that forced anal exams do occasionally still occur in Lebanon, the ban appears to have significantly diminished their frequency.
“Governments in Kenya and around the world should take immediate steps to ban forced anal exams,” Ghoshal said. “The men in the Mombasa case, and dozens of others around the world, should never have had to undergo such a humiliating and demeaning procedure, and governments should prevent this from happening to others in the future.”