Courts of First Instance: Punishment for a Presumed Identity
The maximum penalty for the two most common charges in these cases (habitual practice of debauchery and publicizing material that incites debauchery) is three years each. In 18 first instance verdicts -EIPR was able to document- a one-year verdict was the most common, sometimes accompanied by a fine or a period of observation or both.
In five of the studied cases there was a one-year verdict — in some of these cases the defendants were acquitted of habitual practice debauchery charges but sentenced for publicizing material that incites debauchery through the internet. While in one case, defendants were sentenced only to three months. In two cases, they were sentenced to two years and in another two cases to three years. In four cases, defendants were acquitted, but in one of these cases the defendants, who were not Egyptian citizens, were deported.
In the remaining four cases, defendants received harsh verdicts. The verdicts issued by the Misdemeanours Court are the most severe of their kind since the anti-debauchery and prostitution law was legislated in 1961. In one case, the defendants were sentenced to six years for habitual practice debauchery and operating a residence with the purpose of practising debauchery. In the other three cases, there were sentences of 8, 9 and 12 years. These harsh sentences are a result of the multiplicity of charges for one deed discussed above.
It becomes conspicuous that judges of Misdemeanours Courts are punishing individuals based on their presumed sexual orientation and identity. All the lawyers interviewed for this report agreed that the first instance verdicts in debauchery cases are often a reflection of society’s demeaning and stigmatizing, perception of these people and its desire to punish them for perceived non-normative sexualities. One rights lawyer says of his experience in a Misdemeanours Court:
“The judge kept us until the end of the roll, then he took us to the deliberation room and took out the pictures of the defendant in female clothes and make-up which the defendant had sent to the undercover policeman who set him up and which was included in the case evidence. He kept looking at the picture, and saying ‘Do you want to convince me that this is not your picture, here it is your nose, your eyes..’ and he continued to match the picture to the defendant without regard for the method that this picture was acquired, that this is a private matter and that people can wear whatever they want in their own homes.”
In another case, the judge told the lawyers before announcing his verdict, “As you know, these cases shake the Throne of God.”1
The court decisions are also rife with invocations of religious and ethical values that disdain homosexuality and denigrates it, even if the evidence in the case is weak and the court procedures are faulty. This is the text of a verdict in the previously mentioned Zahraa Nasr City Misdemeanours case:
“The court arrived at the conviction that the defendants committed the crime of debauchery, which has been established with certainty by catching them with women’s clothing and make-up in their possession, in addition to the womanly conduct of the defendants that the court has observed. The prophet has said, ‘God curses men who dress like women.’ Homosexuality is a transgression against humanity and contravenes nature hence God has made it a major sin, even more licentious than adultery.”
In addition to mixing what is criminalized by law and what the judges might deem as religiously forbidden, lawyers also complain that the Misdemeanour verdicts in habitual practice of debauchery cases usually follow a standard template typed while the court fills out the date, defendants, case number and verdict, which makes the reasoning of the verdict too curtailed in many cases.
Court of Appeal’s Rulings
The severity of the first instance rulings handed down by the Misdemeanours Courts in cases of habitual practice debauchery is evidenced by the fact that these sentences are often overturned or reduced on appeal by the Court of Appeal.
Of 12 rulings identified by EIPR’s lawyers and researchers, the Court of Appeal rejected the prosecution’s appeals of acquittal verdicts twice, one of which was the Bab al-Bahr case, the first instances verdict was upheld and the appeal of the defendants in four cases was rejected. However, the first instance rulings in these four cases were relatively lenient (prison terms of three months in one case, and one year in the other three).
The Court of Appeal reduced sentences of first instance courts in four other cases. One of the cases in which the Court of Appeal reduced the original sentence was the “gay wedding case” as it was dubbed by the media. The Misdemeanours Court had handed down prison sentences of up to three years for advertising and publishing materials inciting debauchery. The sentence was reduced to one year on appeal. In the same year, the Misdemeanours Court handed down rulings of up to six years in prison in another case on charges of habitual practice of debauchery and operating a residence for practising debauchery. On appeal, the ruling was reduced to four years. In a third case, the Misdemeanours Court sentenced three defendants to a maximum sentence of two years plus a fine and police supervision. The Court of Appeal acquitted all three of charges of habitual practice of debauchery and sentenced the first defendant to six months in prison for publicizing materials inciting debauchery.
In Case 6269 in Agouza Misdemeanours Court, the first instance ruling was prison sentences ranging from 3 to 12 years on charges of habitual practice of debauchery, publicizing materials inciting debauchery, operating a residence for the practice of debauchery, incitement of debauchery and misuse of a means of communication. The case was a clear example of the persecution faced by gay men and/or transgender women, or those perceived as such, in the sentencing stage, as the Court of Appeal later reduced all sentences to one year.
The Court of Appeal acquitted the defendants after they were convicted in the court of first instance in two cases, one in 2014 and one in 2015. In 2014, Nasr City Misdemeanours Court handed down sentences ranging from three to eight years on charges of habitual practice of debauchery, incitement of debauchery and operating a residence for the practice of debauchery.
1-A reference to a popular saying, “That if two men fornicate, it shakes the Throne of God [in wrath]”. Many Sunni Muslims believe that this saying is attributed to Prophet Mohammed, however, Sunni scholars’ consensus, is that the statement is most likely apocryphal, if not downright blasphemous (Translator’s note)
"Does the Throne of God Shake for any Sins or Wrongdoings?". IslamQA.info. 21 March 2009. Accessed: 17 November 2017