A Kenyan court ruled Thursday that law enforcement can force men accused of homosexuality to undergo anal exams, a precedent that a leading LGBT rights organization said could allow police to more aggressively pursue charges of homosexuality.
"Nothing stops the police from arresting me [now] because I've said I was a homosexual," said Eric Gitari of the National Gay and Lesbian Human Rights Commission, which brought the suit. The police can now use the simple allegation of homosexuality to compel an anal exam that could then be used to support the charge, Gitari said. "This can happen to anyone."
Anal exams are used in many countries that prosecute homosexuality, even though international medical experts say they are useless as evidence of sexual activity and human rights groups have denounced them as a form of torture.
According to Gitari, Justice Matthew Emukule said in court that "anal testing is a reasonable means of proving that someone had committed a crime," and added that "the purpose of the rectum is to excrete solid waste — if adults want to engage in sodomy they should know that it's a crime."
NGLHRC's legal team brought this suit on behalf of two men in their early 20s who were arrested in a 2015 uproar about an alleged gay porn ring outside the southern coastal city of Mombasa. The men face up to 26 years in prison for charges that include unnatural acts, indecent acts between adults, and trafficking in obscene materials.
The judge ruled today on a challenge to the use of the anal exams as evidence, according to Gitari, and NGLHRC is seeking to stop the prosecution until this question is resolved.
The use of these exams in this case is especially important because the prosecution is basing the "unnatural acts" charge on consensual intercourse between adults. Usually, that law has been used in cases of same-sex rape or where one person involved is a minor.
In addition to the question about the exam being used to prosecute the "unnatural acts" charge, Gitari contends that the evidence does not support the pornography allegations, and the two arrested were not directly involved in the events that led to the outcry.
Public furor broke out in early 2015 after a blogger published images from a cell phone stolen from a gay man that included some sexual images taken of friends along with non-sexual snapshots and pornography downloaded from the internet. Some of the images were republished by The Star, one of Kenya's biggest national newspapers, and the outcry put extra pressure on local officials to make arrests in the case.
Gitari said the two arrested were targeted on the basis of "rumor" that they were gay, and only one of them was pictured on the stolen cell phone: a single non-sexual snapshot from the beach where he is shirtless. Lawyers for one of the men told BuzzFeed News in February 2015 that he was assaulted by a mob when the police picked him up.
Gitari said the charges of intent to distribute obscene materials were based in part on the fact that DVDs found during their searches of their homes included the full set of Queer as Folk, which includes several incidents of kissing and sexual encounters between men.
The men were taken for anal exams after they were arrested, and Gitari said the men unknowingly signed consent forms for a medical exam — a form usually used before doctors examine sexual assault victims — and the doctor wrote on their paperwork that the reason for conducting the exam was that they were "suspected gays."
Gitari said that NGLHRC immediate filed notice that it would appeal the ruling, and he's optimistic it will be overturned. Kenya's judiciary has recently issued a multiple rulings advancing LGBT rights in the country.
"We can't let this stand," Gitari said. "I am very optimistic that the court of appeal will embarrass this judge and overturn this decision."