The sentencing of a 22 year-old student to one year in prison for "homosexual acts" has finally sparked debate on LGBT issues in Tunisia. On Monday, September 28, Minister of Justice Mohamed Salah Ben Aissa made an unprecedented statement in which he publicly called for the decriminalization of same-sex relations.
A court in Sousse convicted the student, known only by the pseudonym "Marwan," on September 22, after he was subjected to a forced anal exam, which sought to "prove" that he engaged in anal sex. Amnesty International considers people who are detained solely based on their sexual orientation or gender identity as prisoners of conscience.
On September 6, Marwan was summoned by the police, in relation to the murder of a man in Sousse. He denied playing any role in the murder, but admitted to having sexual relations with the victim, after the police had threatened to charge him with murder. He was therefore charged with "sodomy" under Article 230 of the Tunisian Penal Code, which is punishable by up to three years in prison. This same article also criminalizes "lesbianism," but it is rarely used to arrest lesbians.
LGBTI (lesbian, gay, transgender, bisexual and intersex) activists in Tunisia quickly took notice of Marwan's case. These groups have become more and more active in the past several months, emboldened by the arrival of the new, more progressive, coalition government to power. They have campaigned against the criminalization of same-sex relations between consenting partners, emphasizing that the law violates two fundamental rights guaranteed by the new Tunisian Constitution: the right to a private life and the right to non-discrimination.
A few groups have even launched an online campaign to demand the cancellation of forced anal exams -- an unprecedented initiative in Tunisia.
In an interview a few days after Marwan's sentencing, the Minister of Justice, Mohamed Salah Ben Aissa, acknowledged that Article 230 violates the constitutional right to a private life, and said that it must be repealed. The defenders of human rights in Tunisia must take advantage of this momentum to change the LGBT issues in Tunisia, so that these statements may achieve actual results.
Unfortunately, Marwan's case is not an isolated one. Under the framework of its campaign against sexual violence and gender-based violence in Tunisia, Amnesty International has recently obtained documentation of several cases of arrest, placement in detention centers, and prosecution of gay men between 2009 and 2014. Activists have said that there have been numerous other cases that were never reported.
Gay Tunisian men have told Amnesty International about being apprehended simply because they seemed "effeminate" or because someone had seen them talking to other men in locations known by the police to be frequented by gay men. Like Marwan, many people have been detained without proof and forced to submit to forced anal exams to prove anal sex, although the reliability of this type of invasive exam has not been scientifically proven. Amnesty International equates these forced anal exams to torture or other heinous punishments.
Transgender people have also told the organization that they had been arrested and prosecuted, on the basis of violating public morals, simply because they do not conform to established gender stereotypes and the social norms.
Nevertheless, the impact of these laws goes well beyond the perpetual risk of arrest and prosecution. Throughout the world, the criminalization of same-sex relationships spurs violence against the LGBTI community, and creates a permissive atmosphere that renders them vulnerable to police violence, as well as harassment and abuse by their families and communities. Unfortunately, Tunisia is no exception to the rule.
Amnesty International has met with LGBTI people in Tunisia who have been stabbed with knives, kicked, burned with cigarettes and given death threats due solely to their gender identity or their sexual orientation. Yet, quite frequently, the police have rejected or ignored their complaints because of the provisions in Article 230.
In certain cases, instead of leading a proper investigation of these homophobic and transphobic crimes --in compliance with their obligations under international law-- the police have openly issued warnings and threats to the victims (including lesbians) to get them to withdraw their complaints. In other cases, the police have exploited their fear of prosecution by subjecting LGBTI people to blackmail, extortion, and sometimes, sexual abuse. Gays and transgendered people who do not wish to be arrested are often forced to pay bribes to police officers, including handing over their phones or other belongings.
Consequently, victims of rape or other forms of sexual assault in the LGBTI community are often hesitant to come forward and to report these attacks to the police.
The laws that have made homosexual relations illegal between consenting same-sex partners, in Tunisia and elsewhere, violate international human rights laws.
With this emerging space for public debate on LGBTI rights, Tunisia finally seems to be making small steps --small, but essential-- in the right direction, creating flickers of hope.
However, it is only by revoking Article 230 of the Penal Code and by decriminalizing, once and for all, same-sex relations between consenting partners, that the Tunisian authorities will be able to offer sufficient protection against violence and discrimination.
They must immediately free Marwan, and begin a real process of legislative reform so that no one else may be arrested or prosecuted due to their gender identity or sexual orientation.
This post originally appeared on HuffPost Maghreb and has been translated into English.