The authorities in Tunisia are accused of continuing to violate the privacy of men suspected of being gay and pressuring them to take anal tests and to confess to homosexual activity.
According to Human Rights Watch, prosecutors use information from phones confiscated from these men to prosecute them for homosexual acts between consenting partners, under the country’s harsh sodomy laws.
Tunisian prosecutors have also relied extensively in recent years on forced anal examinations to seek “evidence” of sodomy, even though the exams are highly unreliable and constitute cruel, degrading, and inhuman treatment that can rise to the level of torture.
“The Tunisian authorities have no business meddling in people’s private sexual practices, brutalising and humiliating them under the guise of enforcing discriminatory laws,” said Amna Guellali, Tunisia director at Human Rights Watch. “Tunisia should abolish its antiquated anti-sodomy laws and respect everyone’s right to privacy.”
Human Rights Watch spoke with six men prosecuted in 2017 and 2018 under article 230 of the penal code, which punishes consensual same-sex conduct with up to three years in prison. One person interviewed was only 17-years-old the first time he was arrested.
Human Rights Watch also reviewed the judicial files in these cases and five others that resulted in prosecutions under either article 230 or article 226, which criminalises “harming public morals.” In addition to violating privacy rights, these cases included allegations of mistreatment in police custody, forced confessions, and denial of access to legal counsel.
Police arrested some of these men after disputes arose between them or after neighbors reported them. Two had gone to the police to report being raped. Some of the men spent months in prison. At least three have left Tunisia and applied for asylum in European countries.
K.S., a 32-year-old engineer, entered a police station in Monastir in June 2018 to file a complaint of gang rape, and to get an order for a medical examination of his injuries. Instead of treating him as a victim, he said, the police ordered an anal test to determine whether K.S. was “used to practicing sodomy.” “How they treated me was insane,” K.S. told Human Rights Watch. “How is it their business to intrude into my intimate parts and check whether I am ‘used to sodomy’?”
In another case, a 17-year-old was arrested three times on sodomy charges and was also forced to undergo an anal examination. “I did not understand what was going on. The police told me that the test is mandatory. The doctor told me to go on an examination bed and to bend, and then he inserted his fingers in my insides. The doctor did not explain what the test is about,” he said
He was detained for two months in a juvenile rehabilitation center and forced to undergo “conversion therapy,” a discredited method to attempt to change someone’s sexual orientation or gender identity.
In 2017, Tunisia told the UN Human Rights Council that in future anal examinations would only be conducted with the consent of the person and in the presence of a medical expert. “This stance is not credible because trial courts can presume that a refusal to undergo the exam signals guilt,” Human Rights Watch said. It insisted that Tunisia should abandon anal exams altogether.
According to the organisation, prosecutions for consensual sex in private and between adults violate international human rights treaties and Tunisia’s own 2014 constitution, that protects the right to privacy and the equal rights of citizens “without any discrimination”. It also prohibits “mental and physical torture.”
Human Rights Watch called for the speedy passage of draft legislation on individual freedoms introduced in parliament last month, which includes a proposal to abolish article 230.
“The Justice Ministry should meanwhile direct public prosecutors to abandon prosecutions under article 230,” said Human Rights Watch, adding that, “The Interior Ministry should investigate reports of the ill-treatment of people arrested based on their gender identity or sexual orientation.”