Middle East / North Africa

How ‘debauchery’ law set up Egypt’s gay crackdown

Aswat Masriya used this Reuters photo of the 2001 arrests in the Queen Boat incident to illustrate its report on last week's El-Marg arrests.

For its report on last fall’s arrest of 14 alleged homosexuals, the Egyptian news website Aswat Masriya used this Reuters photo of LGBT people arrested in 2001.

The arrests of 77 people on homosexuality charges in Egypt since October has led to a discussion about how the Egyptian legal system justifies the imprisonment of LGBT people without a law that specifically mentions homosexual activity.

Unfortunately, that discussion has not been among Egyptian politicians who could change the country’s anti-gay laws and stop the arrests.  The discussion has been in the comments section of this blog. Still, it provides some clarity about what is going on.

In an article about the arrests, activist and commentator Scott Long, who has a long history of involvement in Egyptian LGBT issues, stated:

“The crackdown mainly targets the people in Egypt’s diffuse and fragile LGBT communities who are most vulnerable and visible, those who defy gender norms.

“This is despite the fact that, while Egyptian law does criminalize male homosexual conduct, it says nothing about ‘crossdressing’ or ‘effeminacy.’ “

Egyptian poster for the International Day Against Homophobia and Transphobia on May 17,  2014.

Egyptian poster for the International Day Against Homophobia and Transphobia on May 17, 2014.

In response to a related article in this blog, a commenter challenged Long’s statement, alleging that the law criminalizes debauchery [in Arabic, “fugur”] rather than homosexuality:

“This article incorrectly states that male homosexuality is criminalised by law, which is not true. Homosexuals get arrested under a ‘debauchery law’ which has very vague guidelines that gives law enforcers the ability to do so.”

Similarly, last year’s ILGA report on State-Sponsored Homophobia  stated about Egyptian laws, “Sexual relations between consenting adult persons of the same sex in private are not prohibited as such. However … several articles of the Penal Code have been used to imprison gay men in recent years.”

Long disagrees, stating the use of the term “fugur” in Egypt is similar to many other countries’ use of English legal terms that are understood to refer to homosexual intercourse but do not specifically describe it. He also discusses a 1975 Egyptian court decision that authorized the current use of the law against “fugur.”

Here are Long’s slightly edited comments:

Scott Long (Photo courtesy of HRW)

Scott Long (Photo courtesy of HRW)

There is plenty of dispute in Egypt about whether “homosexuality” is “criminalized” or not. The term “fugur” is of course vague, but so are “sodomy” and “buggery” and “unnatural acts” in the English legal tradition. (“Sodomy” originally could refer to sex between humans and animals, or between Christians and Jews or Muslims. In many jurisdictions it still includes bestiality and anal sex between a man and a woman.) Nonetheless, there is no question that these terms have come to include homosexual conduct between adult males, and to criminalize it.

“Fugur” is a very comparable term. It meant a lot of different things when first introduced into Egyptian law (from French law, where it usually meant moral corruption of another person). However, a widely cited Cassation Court decision of 1975 clearly established that it criminalized consensual [and] non-consensual homosexual conduct between adult males. This decision is the standing interpretation of “Fugur” in Egyptian law. So I don’t see how the term is any vaguer than “sodomy”; it is, in fact, quite comparable as a term of art. In any case, there is no question that as long as that Cassation Court decision stands, homosexual conduct between men is a criminal act.

The ILGA report is wrong. They didn’t read the relevant court decisions, and they seemed to have the notion that if an Arabic law didn’t say “homosexuality” (for which, of course, there’s no exact synonym in Arabic) it couldn’t be said to criminalize it. This is a misconception which certainly didn’t govern their approach to “sodomy” or “buggery” laws.

The notion that the law (no. 10/1961, actually passed in 1951) doesn’t “really” criminalize homosexual conduct stems from a strategic decision that Egyptian activists made in 2003-2004. The idea was that a case could eventually be taken to the Cassation Court, which could be asked to reverse its decision of 1975 and find that only commercial sex was criminalized under the law. I wasn’t crazy about this strategy, since it would have sold sex workers down the river. However, it’s a moot point now. Given the present composition of the Cassation Court, and the erosion of judicial independence in Egypt, there’s almost no chance the Court would reverse itself. I don’t see the point of carrying on the pretense that “fugur” doesn’t “really” include male homosexual conduct.

The “guidelines” around “fugur” and its application to male homosexual conduct are not vague. They are clear, and they were set out in the Cassation Court ruling mentioned above. The exact citation is Cassation Court case no. 683/Judicial Year 45, May 12, 1975.

Editor’s note: Further information about the history of Egypt’s law on “debauchery” is included in Long’s additional comment below.

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12 thoughts on “How ‘debauchery’ law set up Egypt’s gay crackdown

  1. Thanks for this. Let me try to give a coherent history of the Egyptian law on “debauchery” here, because I think that can both clear up any confusions and illustrate some of the relations between different kinds of sex laws. Most of this information can be found in more detail in the report HRW did on Egypt in 2004, at http://www.hrw.org/reports/2004/02/29/time-torture; gratitude is due to both Hossam Bahgat and Helmy el-Rawy who did a great deal of legal research.

    a) In 1951, Egypt passed a new law on “The Combatting of Prostitution,” Law 68 of 1951. One of the motives for the law was the growing nationalist, anti-British, anti-colonial agitation which led to the 26 July Revolution a year later. Licensed brothels kept by the British army in and around the Suez Canal zone had been a particular source of humiliation to nationalists. The law was couched in very sweeping terms. In addition to di’ara, which in Arabic commonly means commercial sex, the law introduced the term fugur. A 1949 report by the relevant parliamentary committee suggests that this term was added so that male prostitution as well as female prostitution could be criminalized, but the term (usually identified as a translation of the French debauche or English debauchery) was not defined. In coming years, as well as in colloquial Egyptian Arabic, it was frequently interpreted to mean promiscuity in a general sense.

    b) Article 9c of the law punishes the “habitual practice of debauchery” with up to three years in prison. Other articles of the fugur section of the law were modelled on provisions included in many countries’ prostitution laws: keeping premises for the purposes of fugur, profiting from fugur (in the case of prostitution, this is usually called “pimping”), contributing to the “debauchery” or others or of minors ….

    c) In 1961, when Egypt was temporarily united with Syria, a number of laws were re-passed by the parliament so that they would apply in both countries, and this law was considered important enough to be one of them. Hence it is known as “Law 10 of 1961.”

    d) In the context of the reigning moral and nationalistic fervor in the 50s, the law tended to be interpreted as having a reach that went far beyond commercial sex. Even the reports of two Senate committees deliberating on the draft in 1951 defined both di’ara (for women) and fugur (for men) simply as “the practice of vice without distinction,” omitting any requirement that money be exchanged, and legal textbooks frequently followed suit. In other words, prostitution was coming to mean promiscuity in general.

    e) Thus the meaning of the law was in flux. The courts were frequently called on to decide which women could be prosecuted for di’ara, and which men could be prosecuted for fugur. Through this jurisprudence, di’ara gradually returned to its “original” meaning of commercial sex work by women. (In fact, though, women are sometimes prosecuted for di’ara simply for having extramarital sex or having a “loose” appearance. This imputation of prostitution happens in many jurisdictions, not just in Egypt: consider the common crime of “walking while trans” in the US.) But a 1975 Cassation Court decision, cited above, held that with regard to fugur “The legislator explicitly stated that this crime [the habitual practice of debauchery] happens when one practices vice [fasha’] with people with no distinction, and when this happens habitually. He did not necessitate for this charge that the practice of debauchery [fujur] … happens in return for a payment.” Thus it was established in law that fugur includes consensual non-commercial sex between adult men. This court decision is frequently cited (or its language used) in police and prosecutors’ reports. The Cassation Court reiterated this in other rulings in 1988, 1990, and 1997.

    f) It seems that originally only the “passive” partner was incriminated in fugur cases. This is no longer the case. Police and prosecutorial practice shows that both partners are held equally culpable.

    g) The requirement that the “practice of fugur” be habitual is understood in practice to mean that the accused must have practiced homosexual sex more than once in a three-year period with different partners. This is one reason for the forensic anal examinations imposed on many suspects. They are believed (falsely) to show whether the person has been fucked repeatedly. In fact, even if they had any medical validity, they wouldn’t show whether the person has had multiple partners, or wouldn’t provide evidence against “active” partners. Often partners who are identified as “tops” in the police reports are nonetheless found to be “bottoms” by the forensic anal examinations, and that “evidence” is used against them in court. This reflects, if anything, the conceptual incoherence with which judges and prosecutors approach homosexual sex — and, arguably, sex in general.

    The most important lesson for me in all this is how a law on prostitution (patterned after some of the most respectable models for “anti-trafficking” legislation in existence back in the 40s and 50s) quickly expanded in scope and became a tool for persecuting other consensual sexual behaviors. It’s a sign of how moral panics spread to involve new categories of victims. It’s also a sign of how just getting rid of laws that everybody understands unequivocally to target gay sex won’t necessarily mean that “homosexuality” has been “decriminalized.” If they hate you, they will find a law to use against you. We need to look at the full range of laws that are used to target LGBT people. And we need to understand sex work laws, and sex workers’ rights, as an LGBT issue as well.

    Like

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