Human Rights Watch has condemned the sentencing of two men accused of sodomy in Tunisia to two years in prison last month.
The organisation said the June 6 decision violates their rights to privacy and non-discrimination under international law and Tunisia’s 2014 constitution. The police also attempted to subject the defendants to an anal exam, apparently to use as evidence in the case.
Police arrested the two men, both 26, on suspicion of same-sex conduct on June 3 in Le Kef, a city 175 kilometres southwest of Tunis, after one of them filed an unrelated complaint against the other.
The prosecutor of the Kef First Instance Tribunal charged the men with sodomy under article 230 of the penal code, which punishes consensual same-sex conduct with up to three years in prison. Hassina Darraji, the lawyer who took on the men’s defence for the upcoming appeal, told Human Rights Watch that the defendants had refused the police’s demands that they undergo an anal exam.
“Tunisia’s record of actively prosecuting people for consensual same-sex conduct is deeply worrying and a blatant invasion of their private life,” said Rasha Younes, LGBT rights researcher at Human Rights Watch. “While states and international bodies have commended Tunisia for its progress on human rights, the criminalisation and prosecution of homosexual conduct signals otherwise.”
Damj Association, a Tunis-based LGBT rights organisation, told Human Rights Watch that one of the men had filed a complaint against the other regarding an outstanding loan. The police then attempted to persuade them to “confess that they are gay” by bullying, insulting, and threatening to imprison them, Darraji said.
Damj and Darraji said that after they were sentenced, the authorities transferred the men, whose names are being withheld for their privacy, to a prison in Ben Arous, near Tunis, when a prisoner in el-Kef prison contracted Covid-19. The men are now being quarantined in the Ben Arous prison. The two-year sentence, Damj said, is longer than most handed down for sodomy in recent years. An appeals hearing was scheduled for this week, but the outcome is still not known.
While the Tunisian authorities in 2017 committed to ending forced anal tests as evidence in homosexuality prosecutions, they are still allowed as long as they are based on the consent of the person and in the presence of a medical expert.
Human Rights Watch argues, however, that this approach fails to recognise that consent is seriously compromised because trial courts can infer guilt from a refusal to undergo the exam. The tests are also of no scientific or evidentiary value in proving homosexuality.
The organisation called on the Tunisian authorities to immediately release the men and for parliament to repeal penal code article 230. The Justice Ministry should further direct public prosecutors to abandon prosecutions under article 230 and issue a directive ordering prosecutors to stop sending detainees for anal examinations as part of police investigative procedures.
On October 11, 2018, 13 members of the Tunisian Parliament introduced draft legislation for a code on individual freedoms. It incorporated several proposals from the presidential commission including the abolition of article 230.
“Tunisia has an opportunity to uphold individual freedoms and everyone’s right to nondiscrimination and bodily integrity by leading the way in decriminalising same-sex conduct,” Younes said. “It should start by immediately releasing these two young men and halting arrests based on sexual orientation under archaic sodomy laws.”