Photo: Werneuchen, via Wikimedia.
Tunisia has pledged to the United Nations that it will no longer force men suspected of violating the country’s sodomy laws to invasive anal exams as “proof” of one’s homosexuality.
Mehdi Ben Gharbia, Tunisia’s Minister of Relations with Constitutional Institutions, Civil Society and Human Rights Organizations, signed the agreement on Sept. 21 in Geneva, Switzerland. As part of the agreement, Tunisia accepted 189 of 248 recommendations previously made by the UN in order to help the country improve its human rights record and abolish all forms of state-sponsored torture, reports Kapitalis.
However, Tunisia has not agreed to the proposal that they repeal their sodomy law, which effectively criminalizes homosexuality and punishes offenders with sentences ranging up to 3 years in prison.
While the news is seen as a small step towards adopting less hostile attitudes towards homosexuality, LGBTQ groups are still angered at the retention of the sodomy laws.
“The anal test has never been forced, but if the suspect refuses to comply, the judge retains the presumption of guilt,” Mounir Baatour, president of the LGBTQ group Shams, said in a statement. “What have we gained? Nothing, since harassment, torture, and arrests of homosexuals will continue in Tunisia.”
Neela Ghoshal, a senior researcher for Human Rights Watch’s LGBT Rights Program, tells Metro Weekly that her organization is waiting to see whether Tunisia abides by and implements the proposed ban on forced anal exams, which, if it were to occur, would be a significant development.
“There are a couple of ways that I see it as only a partial victory, but a very good step on the way to a full victory,” Ghoshal says. “I think it is progress because the Tunisian government has recognized that LGBT people have rights. Regardless of the fact that they are criminalized, it doesn’t mean there’s carte blanche to carry out any kind of torture or ill treatment against them. They have recognized that consent matters, that people have the right to consent to whatever procedure to which they’re subjected.
“The reasons I think it’s still inadequate is that anal exams are problematic, whether or not someone consents to them, because they are not scientific, they are not grounded in any sort of medical or scientific basis. One can imagine a situation in which one consents to an exam because they think it will prove them not guilty, and the problem is that the findings are arbitrary, so someone could still be convicted on this basis,” she adds.
“The actual step that Tunisia needs to take is to say these exams won’t happen at all, that they cannot be admitted into evidence in court because they’re flawed evidence, whether or not there’s consent.”
Ghoshal says that even the issue of consent can be blurry when someone is arrested on suspicion of engaging in homosexual sex. For instance, a prisoner may refuse an anal exam, and the doctors who perform the procedure will send them away with police, who will then beat or torture the prisoner until they “consent” to the exam.
“In the grand scheme of things, in terms of LGBT rights, even if Tunisia does get rid of the exams altogether, there’s still a need for decriminalization, because otherwise police will try to come up with absurd ways of trying to prove someone is homosexual, such as going through their phone messages or social media accounts,” Ghoshal says. “They have all these ways to come up with ‘evidence,’ and if they’re determined enough, they’ll find something or another. Ultimately, the law needs to go, because it’s not the government’s business what people are doing in their bedrooms.”
Ghoshal expresses hope that other countries may follow Tunisia’s lead in moving to ban forced anal exams. For instance, she notes, Lebanon still has laws outlawing “unnatural carnal knowledge,” but the country effectively banned the practice of anal exams in 2012 after caving to pressure from the medical community and LGBTQ advocates. She is also heartened by news that governments of other countries where anal exams are administered are considering ending the practice.
Ghoshal’s hope is also bolstered by opposition from medical professionals. Even though Kenya’s attorney general is defending the use of anal exams as constitutional, the Kenya Medical Association recently passed a resolution vowing to discourage the use of anal exams to “prove” homosexuality, and to respect their professional code of conduct around patient consent if asked to perform such a procedure by police.