This week, Tunisia celebrates the fifth anniversary of the uprising that led to the Arab Spring. The country is now a functioning democracy and has a progressive constitution, achievements that have created high expectations of Tunisia and brought international support for its transition away from authoritarian rule. It is, however, concerning to observe that, five years after the start of the revolution, human rights violations are still taking place, and abusive laws dating back to the dictatorship are still in effect. Unfortunately, Tunisian physicians are taking part in unjust judiciary processes, and violating bodily integrity and ethical standards in ways that are sending many of the country’s young people to jail.
On the uprising’s anniversary, a Tunisian court sentenced a 22-year-old man to two months in prison for violating Article 230 of the Tunisian Penal Code, which criminalizes “Liwat” – loosely translated in English as sodomy. The proof for Marwan’s conviction was established by a forensic doctor who performed an anal exam on him. Earlier this month, six students were sentenced to three years in jail for the same crime; a forensic doctor had performed anal exams on the students, and, on the basis of these exams, wrote an affidavit “proving” their sexual history.
Sodomy is just one of many examples where forensic medicine is being used to convict citizens for behavior that should not be criminalized in the first place. DNA testing and vaginal exams are also used to provide “proof” when adults are accused of engaging in consensual sexual activity outside of marriage – a crime that carries a jail sentence of up to five years in Tunisia. Urine testing has been used to put more than 8,000 young people in jail for cannabis use, constituting a third of Tunisia’s incarcerated population. Partly due to these invasive tests, Tunisian jails are severely overpopulated at 150 percent capacity, making the country’s prisoner-per-capita rate the second highest in Africa, after South Africa.
The use of forensic medicine techniques to support the criminal prosecution of drug misuse and consensual adult sexual activity is problematic and runs counter to international human rights standards, which protect bodily autonomy. Tunisian medical authorities should refrain from performing tests that violate the constitutional rights of dignity, bodily integrity, and privacy (Articles 23 and 24). They should abide by their professional responsibility to do no harm, and should ensure that informed consent is based on adequate disclosure and understanding of the potential benefits and adverse consequences of a medical evaluation. Doctors must also be sure that consent is given voluntarily, without coercion by others, particularly law enforcement or judicial authorities. Under Tunisian and international human rights law, a person under arrest has the right to refuse a medical and/or forensic evaluation, and the reason for refusing an evaluation must be documented.
Judges and prosecutors should also be educated on the illegitimacy of these medical evaluations. While forensic medical evidence is important in documenting sexual assault and trauma, it is unethical and scientifically unfounded to document consensual sexual activity between adults. Anal and vaginal tests to prove sexual history can be experienced as forms of sexual assault and often do not prove the criminalized conduct. Likewise, DNA testing performed by non-accredited labs with low quality samples taken by poorly trained police officers – which is often how tests are conducted in Tunisia – can lead to inconsistent and false results.
The Tunisian people should beware of placing powerful scientific tools such as DNA testing in the hands of a criminal justice system that has produced mass incarceration and flagrantly ignored human rights.
On this fifth anniversary of a youth-led uprising that screamed for freedom and dignity, Tunisia’s democracy should abide by its newly-adopted constitution, amend its legislation to decriminalize consensual sexual relations once and for all, offer a public health-based approach to dealing with substance misuse rather than unlawful testing, and stop using forensic medicine to jail its citizens.
If these changes are made, the ruling majority that promised Tunisians it would deliver on the objectives of the revolution will have kept its electoral promise. It will also send a strong signal to those who doubt the long-term success of this democracy in the Arab world.