Tunisia is among several countries in which Human Rights Watch has documented the use of forced anal examinations in the last six years. These invasive and humiliating exams, based on discredited 19th century science, usually involve doctors or other medical personnel forcibly inserting their fingers, and sometimes other objects, into the anus of the accused. The law enforcement officials who order the exams claim that, based on the tone of the anal sphincter or the shape of the anus, one can draw conclusions as to whether the accused person has engaged in homosexual conduct. Forensic experts reject such a claim.
“Tunisian doctors have taken a courageous step in opposing the use of these torturous exams,” said Neela Ghoshal, senior lesbian, gay, bisexual, and transgender (LGBT) rights researcher at Human Rights Watch. “To ensure that forced anal testing in Tunisia ends once and for all, police should stop ordering the exams, and courts should refuse to admit the results into evidence.”
Forced anal exams violate the Convention against Torture, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights. As the United Nations Committee Against Torture has emphasised, they “have no medical justification and cannot be performed with the free and informed consent of the persons subjected to them, who consequently will then be prosecuted.” For medical practitioners to conduct such exams is a violation of medical ethics, Human Rights Watch said.
The statement from Tunisia’s medical council said that doctors must henceforth inform peoples that they have the right to refuse the exam. Prohibiting doctors from carrying out anal exams without consent is a step in the right direction, but because of their unscientific nature, the use of anal exams to test for consensual homosexual conduct should cease altogether, regardless of consent, Human Rights Watch said. In that sense, the medical council’s statement does not go far enough: it leaves open the possibility that someone accused of same-sex conduct might “consent” to an anal exam under pressure from police, because they believe their refusal will be held against them, or because they believe it will prove their innocence.
Doctors in the Tunisian towns of Sousse and Kairouan subjected at least seven men accused of sodomy under article 230 of the penal code to forced anal exams in 2015, sparking a civil society movement against the practice. Human Rights Watch interviewed the men, some of whom described the forced anal exams as akin to rape. A 22-year-old student subjected to an anal exam in Kairouan told Human Rights Watch: “I felt like I was an animal, because I felt like I didn’t have any respect. I felt like they were violating me. I feel that up to now.”
The UN Committee Against Torture condemned the use of anal exams in Tunisia in May 2016, and the European External Action Service asked Tunisia to immediately stop conducting these examinations at an EU-Tunisia human rights dialogue in January 2017.
The statement by the medical council follows a more recent case in which two young men were arrested on sodomy charges in December 2016. They were subjected to forced anal exams, and though the results were “negative,” were sentenced in March 2017 to eight months in prison.
In a July 2016 report, Human Rights Watch documented and condemned the use of forced anal exams in Cameroon, Egypt, Kenya, Lebanon, Turkmenistan, Uganda, and Zambia. Tanzania also carried out forced anal exams on suspected gay men in Zanzibar in December, during an ongoing anti-LGBT crackdown.
In Lebanon, the use of forced anal exams declined significantly in 2012 when, in response to a campaign by activists against the “tests of shame,” the Beirut Medical Syndicate issued a circular calling on doctors to cease carrying out the exams. But isolated cases occurred as recently as 2015, indicating that action by a medical council is unlikely to be enough to fully stem the practice.
Heads of states and heads of governments should take steps that are legally within their powers to end forced anal examinations in prosecutions for consensual same-sex conduct, such as issuing executive orders prohibiting their use; introducing and advancing legislation banning forced anal examinations; or instructing relevant ministries to take steps to ban the exams, Human Rights Watch said.
Judicial authorities should prohibit judges and magistrates from admitting the results of anal examinations into evidence in cases involving criminal charges of consensual same-sex conduct, and law enforcement officials should refrain from ordering the exams.
Health ministries and national medical councils or similar regulatory bodies should prohibit medical personnel from conducting anal examinations on people accused of consensual same-sex conduct. National human rights institutions should investigate the use of forced anal examinations and call on relevant authorities to put a stop to the practice.
The World Health Organisation should issue a clear statement condemning the use of forced anal exams in homosexuality prosecutions, Human Rights Watch said.
Human Rights Watch calls on all countries to revoke laws that criminalize consensual same-sex conduct, which violate international recognized rights to privacy and nondiscrimination.
“It is time for the world to say a resounding no to the use of forced anal exams everywhere,” Ghoshal said. “It is encouraging to see Tunisia’s doctors leading the way. Medical councils around the world, as well as law enforcement agencies and other government bodies, should take their cue from this example.”