The Public Prosecution
While the testimonies consistently point to extremely poor treatment in police stations — detainees at police stations are subjected to beatings and insults, as well as their friends and families insulted on visits — the experiences with prosecution vary. It can even vary for the same group, from one time to the other, during the different presentations before the prosecution.
Shahir, who was detained pending trial in 2014, described that in one of the times when he was presented to the prosecution, a prosecutor yelled at a Youm7 journalist for videotaping the defendants. Sameh, related his experience with the prosecution: “I tried to explain to the prosecutor about the insults and physical assault that I endured at the hands of the police, but he ignored what I said and asked me to simply answer the questions. In the end, he said that he was not convinced by what I had said and told me not to do that again.”
The experience of refugee Firas with the prosecution was exceptionally cruel:
“When I went into the office of the prosecutor, there were five people there who insulted me repeatedly, calling me a ‘faggot.’ I felt sorry for myself so I cried and one of them got up, smacked me on the back of my head and laughed.
Then I went into the investigative prosecutor’s office and related the scenario that officer Tamer instructed me to say [about childhood abuse and consequent sexual behaviour], thinking that this would get me out. When the prosecutor asked me to sign the testimony, I felt worried again that I was being tricked and was putting myself in danger. So I asked for my lawyer and demanded my right as a refugee to contact UNHCR. At first he refused, got angry and insulted me and then when I insisted, he said that if I sign the testimony he would let me make a phone call. And because I didn’t memorize any numbers, I asked him to bring my phone to take a number from it, and I called a friend of mine who works at one of the international migration organizations and he informed my friends of what had happened.”
Interviewed Lawyers confirm that there exists a bias across different ranks of the prosecution towards these kinds of cases. One of the lawyers -in an interview conducted with him in May 2017- in the Bab al-Bahr case related that he faced intransigence when he went to the prosecution to photocopy the case file where, the head prosecutor in the case said to him when he introduced himself, “I am lawyer ( ), here for the defendants ( ), ( ), and ( )”, the head prosecutor replied, “So you’re the faggots’ lawyer?” The lawyer responded, “I believe these cases are called debauchery cases according to the law, and the law has not been amended as far as I know. And I don’t know how the prosecution is working on this case if it has this kind of preconceived judgement towards the defendants.”
Another rights lawyer -in an interview conducted with him in June 2017- described an incident at the Agouza prosecution. He asked the prosecutor about individuals arrested on debauchery charges “but the prosecutor did not deign to answer me, instructing an administrative employee to answer my questions instead. The assistant took me to a staircase where 16 women arrested on prostitution charges were piled on the stairs, waiting for their turn to see the prosecutor and the assistant told me, ‘You have all these women, pick one to defend for free and you can do your little number, then the girl will do what you want, or do you have a thing for faggots?”
This presumed hostility towards gay men and transwomen, or those perceived as such, by the prosecution was confirmed by another lawyer -interviewed in Mayn2017, when he went to the prosecution to attend the investigations held with a group charged with habitual debauchery, the prosecutors told him, “Do you know who your defending?”
These situations reflect the lack of neutrality in how the prosecution views defendants in such cases and it also extends to procedural aspects as well. In the following sections we will show the kind of accusation the prosecution levels against those arrested in such cases in addition to referring the defendants to the Forensic Medicine Authority to forcibly undergo “rectal examination” and the role of Forensic Medicine Authority in that regard. We will then show the speed by which these cases are referred to courts and what that entails of a threat to the rights of the defendants in a fair trial.
The Charges brought by the Prosecution
Through case files that EIPR managed to get copies of, we find that the most common charges in such cases is the habitual practice of debauchery, which is criminalized in Article 9 of Law 10/1961 pertaining to the criminalization of prostitution and debauchery. This charge was brought in all 23 cases studied in this report between 2013 and 2017. Even in the case of arresting a man dressed as a woman in public. The second charge most commonly brought is publicizing materials on the internet that incite debauchery, and invite its practice, which is criminalized in article 8 of the same law. This was present in 14 of the cases. Meanwhile the charges of running a house/residence/locale of debauchery and of inciting debauchery, criminalized in article 8, were each brought in eight cases, and the charge of facilitating debauchery, criminalized in article 11, in three cases.
Other charges brought in one or two cases include drug use, failure to present identification, misuse of communications tools, public indecency and distributing indecent material.
EIPR researchers and human rights lawyer who were interviewed have noticed that the way in which the charges are phrased by the prosecution enables the punishment of individuals with multiple punishments for the same deed. Even though the Supreme Constitutional Court1 has upheld that no one can be repeatedly punished for the same crime, based on the principle, ‘one crime does not constitute two liabilities’ as the court stated. Nevertheless the multiple accusations by the prosecution, levelled against those arrested for habitual practice of debauchery cases, makes it easy to punish those individuals repeatedly for the same crime. This might explain the long prison sentences that some receive in those cases.
The multiplicity of charges was documented in at least three cases. Firstly, Bab al-Bahr case, where among the charges were habitual practice of debauchery and committing an act of public indecency. This in turn lead to the defendants lawyer, in his defence, to discard the public indecency charge, in accordance with article 32 of criminal law.
In the defence memorandum:
“And as such if the criminalized behaviour attributed to the defendants is habitual practice of debauchery, as mentioned in the police report, the prosecution described at times as habitual practice of debauchery as stated in the first article. And at other times, the prosecution described it as an act of public indecency as stated in the second article. Each has a statute criminalizing each of the acts. Thus we find ourselves before several incriminating statutes for one crime (the crime defined by the police officer as practice of debauchery). The crime itself was defined by two distinct definitions for different crimes, which is known as metaphorical or ersatz multiplicity”.2
We also witnessed the same pattern of multiple charges in the case known in the media as “sexual deviants marriage” in which the defendants were referred to Misdemeanours Court with the following charges:
-production and publication, with the intent of distribution, of an online video which included material that violated public morality as described in the police investigations.
-habitual practice of debauchery as described in the police investigations
-advertising -through publishing the online video- an invitation the includes debauchery and incitement for debauchery and calling for attention in the way described in the police investigations.
As for the first to the third defendant:
-they incited and facilitated, the fourth to the eighth defendant committing debauchery as described in the police investigations.
The charge of publishing a YouTube video came once as: “publishing a video containing material that violated public decency” and another time as, “advertising a call for debauchery and incitement”.
In April 2016, the Agouza Misdemeanours Court handed down 12-year prison sentences. EIPR condemned the duplication of charges for a single deed3. The prosecution levelled out charges of publicizing materials on the internet that incite debauchery and misuse of a communication tool (the internet). The duplication of charges violates Article 32 of the criminal code which pertains to multiple penalties for the same deed4. Furthermore, it corroborates the lawyers’ observation of the bias on the part of some prosecutors in such cases, and their desire to punish defendants for their sexual orientation and practices even if this entails violating legal principles pertaining to how to press charges.
The Forensic Medicine Authority
In several habitual practice of debauchery cases, the prosecution refers arrested individuals to the Forensic Medicine Authority to undergo forced pubic and rectal examinations, to prove that those subjected to those examinations were “used” or not. During these examinations, individuals reveal their lower body parts to the forensic doctors who violate their bodies under the pretext that this fraudulent procedure reveals the individuals’ practice of anal sex.
These forced medical examinations have no scientific grounds whatsoever and are based on spurious scientific evidence meant to misguide and delude. Studies show that such examinations are based on nineteenth century forensic study of sexual crimes by French forensic doctor Auguste Ambroise Tardieu, published in 1857, titled, “A Medical-Legal Study of Assaults Against Decency”. The study included a section to verify what Tardieu named, “sodomy crimes”. Tardieu laid out six indications to identify sodomites:
1. The excessive development of the buttocks
2. The funnel-shaped deformation of the anus
3. The relaxation of the sphincter muscle
4. The effacement of the folds, the crests, and the wattles at the circumference of the anus
5. The extreme dilation of the anal orifice
6. Ulcerations, haemorrhoids, fistulas5
The records of the cases studied in this report demonstrate the dependence of the Forensic Medicine Authority on Tardieu’s outdated and discredited work. The files also reaffirm that these examinations are solely concerned with examining the rectums of the individuals arrested. Therefore, the central preoccupation for the Forensic Medicine Authority in such cases (defined as habitual practice of debauchery) is to indicate whether the person engages in anal sex or not. The convicted here is referred to in the parlance of the police and prosecution as someone who assumed a passive role in the sex act.
After the prosecution refers the defendant to the Forensic Medicine Authority, the doctors carry out the said examination, and they write a report based on a fixed template. The first page indicates that the Forensic Medicine Authority is returning the case files to the prosecution with the forensics report attached, to determine whether any of those examined was “recently penetrated from behind.” Afterwards comes a template that states case number, names of the defendants, the date they were referred to the Forensic Medicine Authority, fingerprints, and indication of age.
These are some excerpts from forensic reports of defendants in habitual practice of debauchery cases:
“A local examination from behind found the anus to be normal, and the folds around it present and free of injuries. Normal rectal reflex. Gentle pulling on the buttocks showed that the anal sphincter is firm and normal.”
An examination from behind found that the anal muscle reflex is intact and hyperresponsive and we found a purple bruise around the anus as well as a cut, with semi-coagulated bloody ridges, at 5’o'clock position, towards the anus, and doesn’t reach the anal canal. It is around 1 cm long... indicating that he has recently engaged in homosexual penetration. We established that the anal area does not exhibit signs of being repeatedly, in act of sodomy, penetrated from behind...
Conclusion: An examination from behind found no evidence or signs in his anal area that he was penetrated from behind recently or in the past, there are no signs or appearances of repeated anal penetration.
It is known that an adult can be penetrated with extreme caution, consensually and with the use of lubricants.
In all the case files obtained by EIPR, there was only one case where the report determined that a person is “repeatedly used” meaning that he was repeatedly anally penetrated. In a 2015 habitual practice of debauchery case in which a public figure was arrested, the report reads:
An interrogation revealed that the second defendant is [ ] years old and with subjecting them to an anal medical examination, it was found that the anus is in a deep funnel shape and has sustained healed lacerations reaching the mucous membrane of the rectum. With gentle pulling of the buttocks, the anus was dilated by about 3 cm showing the anal canal with effaced crests and we found the anal muscle reflex weak. It is not technically useful to take a rectal swab, due to the reason mentioned above. We determine from the above:
As for the second defendant ( ), the appearance described in the forensic report reveal that he has been repeatedly used from behind in homosexual [sodomized] penetration and hence the occurrence of sexual act on the date [ ] according to the prosecution’s report is possible.
EIPR documented a 2015 case in which a judge referred defendants to the Forensic Medicine Authority not just to undergo anal examination to determine whether anal sex took place, but also requested they be examined “to determine whether they have taken medication to help alter the shape of their bodies and their masculinity, and to specify the names of those who are found to be so, and refer them to an assigned expert.” In the report concerning these defendants, the doctor wrote in the report: “A full body examination revealed no sign of hormonal imbalance. We also determined that the external reproductive organs are in their normal masculine, adult shape and size.”6
Just as in case of rectal examination, where forensic doctors conclude their reports that individuals can engage in anal sex without any apparent visible signs on their rectums, forensic physicians also write similar conclusion in hormonal examinations. A note at the end of the report however, reads,
There is as yet no need to examine the aforementioned defendants for consuming drugs or medication that would result in altering their physical features, as there are no special appearance or appearance of a hormonal disturbance. And due to the long period that has elapsed between the time of arrest and the medical examination, any drugs or substance consumed would have dissolved in the blood, if confirmed to have been consumed, hence there is no technical way to prove the validity of the claims, and the reference should be witness accounts and investigations.”
Yet the files for the same case indicate that those arrested were previously subjected to blood tests to measure their hormones. The former report states:
“The following defendants came to the central labs of the Forensic Medicine Authority and blood samples were drawn to measure LH and FHS hormone levels in their blood.” And after the report lists these hormonal percentages, it concludes with “the hormones percentage in the blood is normal and acquits any defendant from the charge of consuming medication that alter physical or masculine attributes in the current time.”
In another habitual debauchery case in 2015, the Public Prosecution referred defendants to the Forensic Medicine Authority with five requests:
1. Carrying out a medical examination to check for habitual practice of debauchery through repeated anal penetration and if they were repeatedly used and the manifestations of this on them…etc
2. Examining the anus of both defendants for any traces of seminal fluid and testing whether they match the seminal fluids of other defendants.
3. Examining the evidence for seminal fluid and determining whether they match with either defendants.
4. Examining the evidence and determining how it may have been used in sexual activity.
5. Taking urine and blood samples from defendants to test for the presence of drugs, sleeping pills, alcohol or any mind-altering substances or not, and if affirmed, what is the nature of said substance.
In the same case, defendants were also referred to an educational hospital for STIs tests. The referral requested information on any necessary treatment, the possibility of infecting others and necessary protective measures.
The increasing involvement of the medical sector and specifically the Forensic Medicine Authority in the cases of habitual debauchery is an alarming indicator as to how implicated the medical establishment is in such egregious violations. Forced anal examinations are now considered by the UN Committee against Torture as a method of cruel, inhuman or degrading treatment, which may constitute torture. The doctors carrying out the examinations are in clear violation of the Constitution, which guarantees the right of all citizens to dignity. They are also in violation of the oath doctors take to preserve patients’ dignity, and to article 35 and article 28 of the Medical Code of Ethics, which prohibits doctors from carrying out any medical examination without informed consent.7
Article 35 of the Medical Code of Ethics states:
“It shall be imperative upon the physician entrusted with the medical care of those whose freedom is restricted to provide them with medical care of the same quality and standard available for those whose freedom is not restricted. The doctor shall be prohibited from carrying out positively or negatively any acts that constitute participation in torture operations and other kinds of cruel or inhumane treatment and from colluding or instigating these acts. Doctors shall also be prohibited from using their professional skills and information to assist in questioning those whose freedom is restricted in a manner that endangers their health, physical or mental condition, and from taking part in any measure to restrict the movement of those whose freedom is restricted unless this is decided pursuant to pure medical criteria in order to protect their physical or mental health.”8
Perhaps even more alarming than the false scientific basis for these anal examinations and the violations they entail, is that those who carry them out appear to know that they are useless for generating evidence. The medical reports all end with this statement: “And it is established that an adult can be penetrated very carefully and with the consent of both parties, and with aid of lubricants”. This leaves no space for doubt, that the continued use of such procedures is part of the punishment for those accused in these cases.
In a 2016 report, Human Rights Watch reveals that these tests are used in two Arab countries apart from Egypt: Tunisia and Lebanon9. However, the situation in these countries is different as the crackdown on LGBTQ individuals is less severe than in Egypt. Firstly, the weakness of the security crackdown on the gay men in both countries compared to Egypt. Secondly, the counter-mobilization and the position of the doctors syndicate in Tunisia and Lebanon from these violation that are done in the name of medicine.
In Lebanon, activists and rights groups launched a campaign protesting the degrading examinations, dubbed “the tests of shame.” In an attempt to condemn the state for undertaking those degrading examinations. The campaign led to two important developments: the Doctors Syndicate issued a formal memo banning forced anal examinations10 and the Justice Ministry adopted the syndicate’s position and also banned these practices.
In June 2016, the UN Committee Against Torture said in its final remarks on the third report on Tunisia’s commitment to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that it is crucial to ban these tests, asserting that they have no medical justification.
The committee noted that while theoretically individuals are entitled to refuse to undergo the examination, however the committee expressed its concern that people are subjected to these examination under threat from the police and through the justification that refusal to submit to those examination can be construed as evidence of guilt. The committee added in its remarks that it is not possible for people who undergo the examination to give free informed consent. The committee described such examinations as interfering within the affairs of others and recommended the annulment of the chapter in the Tunisian penal code, which criminalizes consensual sexual relations between two adults of the same sex.11
The testimonies collected by EIPR show that the main aim of these forced anal examinations is to humiliate and insult those subjected to it. This refers not only to the examination itself, but also through the treatment of the police personnel responsible to accompany the defendants to the Forensic Medicine Authority.
Usually the defendants are taken to the Forensic Medicine Authority in what resembles a humiliation parade, where the police personnel accompanying them would tell anyone who asks the charges they face, which are considered dishonourable crimes. This humiliation and debasement in the way the defendants are treated has been documented through different testimonies over the past few years.
One defendant, A. who was detained on habitual practice of debauchery charges in November 2013 recounts in an interview conducted with him in February 2014:
“On the evening of November 6, we went to the Forensic Medicine Authority in Ramses. The policemen refused to park the car in front of the building, they parked far away and made us walk in the street. When anyone asked, they would say, ‘These are faggots, we caught them sleeping together.’ When we arrived at the Forensic Medicine Authority, officers beat us up and insulted us, they called us ‘trash’ and threw water on us, and kept insulting us until the doctors arrived. They examined us, and when I asked the doctor what he would write in the report he said that he was not authorized to say. They wrote the preliminary report and took us back to the prosecution, which ordered further tests. We were then taken to the Central Security Forces camp in 6th of October City. We slept there and woke up at 7 am. We waited for hours and then were taken for tests and they took blood and urine samples to test for HIV/AIDS, Hepatitis C and drugs. We were then returned to the prosecution where our detention was renewed for 15 days.”
Rabi’, one of the defendants in the Bab al-Bahr case, recounts his experience with the Forensic Medicine Authority:
“They took us walking from Azbakiya to the Forensic Medicine Authority in Ramses. We were handcuffed to each other in sevens and were barefoot. They answered anyone who asked what we had done, ‘These are the Bab al-Bahr bathhouse sexual deviants.’ They brought us back the same way, and refused to let us wear slippers even though it was a long distance. Seven days after the forensics visit, the officer came and told us, ‘You are all “used”, whoever does anything tell us and we’ll get you out.’
Shahir, arrested in 2014 says,“We were four people. We headed to the Forensic Medicine Authority, and each two were examined by a doctor. As soon as I entered the room, the doctor said: ‘What is that I’m hearing about you? I heard that they caught you fucking each other.’ I told him that we had just rented the apartment on the day they arrested us, and he said: ‘We will see, go in, get undressed, get on your knees and hold the chair. He was saying that so the anus would be visible and he can decide.”
Fast Referrals in Debauchery Cases
Debauchery cases life cycle, starting from entrapping defendants till the moment of appeal, indicate an exceptionally fast cycle specific to that kind of cases. The average time period from the moment of arrest to the appeals verdict is one to two months.
Lawyer at EIPR Alaa Farouk who has worked on several of the cases featured in this report says, “Sometimes the prosecution would quickly refer the case to a non-specialized court if the assigned court for such misdemeanour has about a week to consider the case”. Farouk explains that this results in the pretrial detention for those arrested, becoming the responsibility of the court. Thus it becomes impossible for lawyers to appeal the prosecution’s decision to detain the defendants.12
The speedy referral also makes it difficult for lawyers to challenge any unfair or illegal procedures. Notably, the anal examinations are carried out before a lawyer can be present at the time when the prosecution issues such request and challenge the order.
Lawyer Ahmed Hossam says,“In all the debauchery cases that I defended, I was never once able to attend the prosecution interrogation due to the speed by which the cases are processed. As soon as the person is arrested, they are interrogated by the prosecutor the next day who renews their detention for four days pending investigations, and during those four days, the case is referred to court. In one of the cases I worked on, the person was arrested on June 1, 2016, the prosecution interrogated him on the same day, his first court session was scheduled for June 5, and the Misdemeanours Court sentenced him to a two-year prison term. An appeal session was scheduled for June 12 and the sentence was reduced to six months. In less than two weeks, the person was arrested, interrogated, and received verdicts at the first and second degrees of litigation.”
The fast referral of these cases jeopardizes several rights of the arrested individuals, namely:
The right to a fair trial
More importantly the right to appeal the legality of their detention
Their right to a lawyer in the pre-trial phase
Their right not to be subjected torture and other forms of brutal, humiliating and inhumane treatment
Their right for sufficient time and necessary facilitations that would make it possible to prepare an adequate defence
Their right not to make confessions under duress.
1Case no. 49/Y17, Supreme Constitutional Court, Principles of the Decision (accessed 15 November 2017) http://hrlibrary.umn.edu/arabic/Egypt-SCC-SC/Egypt-SCC-49-Y17.html
2Defense Memorandum for Primary Court Decision, Bab al-Bahr Case, by lawyers Ahmed Hossam, Mohamed Khedr, Islam Khalifah
3 EIPR Statement: Imprisonment Verdicts in Debauchery Cases are Shocking and Punishes Individuals with Multiple Punishments for the Same Deed. 30 April 2016
4Article 32 from the Criminal Code, “If the same deed forms multiple crimes, the crime with a stricter penalty and the judgement inflicting that penalty shall alone be considered.” Retrieved from: Sharing Electronic Resources and Laws on Crime. UNDOC. Accessed 17 November 2017
5Scott, Long. “In a Time of Torture: The Assault on Justice In Egypt's Crackdown on Homosexual Conduct.” Human Rights Watch. 2004. p.159 Accessed: 17 November 2017.
6 Case no.19296, Agouza Misdemeanours Y/2014, verdict 2015
7The Medical Code of Ethics, as decreed by the Minister of Health and Population, Decree no. 238/Y2003
9“Dignity Debased: Forced Anal Examinations in Homosexuality Prosecutions”. Human Rights Watch. June 2016. Accessed 15 November 2017
10“Anal Examination in Lebanon”. The Lebanese Medical Association for Sexual Health. 7 July 2014. Accessed 15 November 2017.
11“Concluding Observations on the Third Periodic Report of Tunisia*”. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 10 June 2016. Accessed 15 November 2017.
12 An interview with Alaa Farouk at EIPR, May 2017