The Public Prosecution should have noted the illegal practices of the Interior Ministry in using dating applications and websites to target and entrap gay men, or those perceived to be as such, as well as transgender women. So much that, according to current legislation, and the principles of the law in general, these practices constitute in themselves incitement to and manufacturing of crimes. However, the prosecution’s consistent deployment of charges of habitual practice debauchery and publicizing material inciting debauchery in all these cases confirms the manipulation of the law in order to punish and persecute these people as the stipulations for “habituality” laid out in the law are often not met in the prosecution’s investigations.

First stipulation: A person’s confession to past same-sex sexual relations does not in any way suffice to establish the element of habituality. As evidenced by a number of testimonies, the morality police attempts to convince arrested individuals that they may be acquitted or receive milder sentences if they confess to their being raped or sexually assaulted as children and that this led to their “deviant practices.” However, a confession in itself is not sufficient as conclusive evidence. The Court of Cassation states in one of its rulings:

“Prostitution is a crime of habituality without which no crime has occurred. Determining the element of habituality establishes the crime of prostitution even if this is subject to the discretionary authority of the court, on the condition that such discretion is within reason. Since the court in the ruling under appeal had convicted the appellant of habitual practice of prostitution because they arrested her while entering a foreigner’s hotel room and on the basis of her confession along with another suspect, contained in the police report of their habitual practice of prostitution with men indiscriminately and in exchange for payment, the ruling’s reasoning has been found to provide insufficient grounds to establish the element of habituality-- without which no crime has occurred.”1

Second Stipulation: There is no penalty for the intent to initiate the practice of debauchery nor is it possible to establish habituality through confirming the repeated occurrence of the act. Even after the prosecution and the police confirm the intention of an arrested individual to engage in acts of debauchery with the officer or informant who communicated with him, this is insufficient to be deemed a crime in of itself. This is because the habitual practice of debauchery is a crime of habit and there is no penalty on the intent to initiate it. The initiation of incitement of debauchery is, however, criminalized. Additionally, the Court of Cassation has ruled that practising the act more than once in the same location/site is not sufficient to establish the element of habituality. The habitual practice of prostitution or debauchery requires the repetition of the circumstance or occasion. The Court of Cassation states:

“The repeated act of a woman engaged in prostitution in the same site is not sufficient to establish habituality even if more than one man was present on the scene. This is because habituality is only established by repeating the occasion or circumstance.”2

In another instance, the court states:

“Establishing habituality in running an establishment for prostitution does not necessarily establish the habituality of practising prostitution. Habituality is determined by repeating the occasion or circumstance…the repetition of the deed, of one who practices prostitution in one location, is not enough to constitute “habit”, even if the place included more than one man. That is because habituality is distinguished by the repetition of occasion or circumstances. The ruling under appeal had considered the repetition of the deed twice with the other appellant, in the same location, as evidence of the habituality of the appellant in addition to establishing the habituality of the first appellant, the owner of the residence. The ruling did not supply sufficient evidence to establish the element of habituality without which no crime has occurred, thus the court overturns the ruling and acquits the appellant of the charges.”3

The Court of Cassation has also set down standards for what constitutes repetition of an act to qualify as being habitual. It must be ascertained that the defendant has engaged in “indiscriminate” sexual practices in the three years preceding arrest in addition to the one time involved in his arrest. The court states:

“Prostitution, as defined in the law, is the practice of vice with others with indiscriminately. Moreover, the crime of prostitution is a crime of habituality, which is only upheld when habituality is established. In establishing habituality, the Court of Cassation considers that no more than three years should have elapsed between incidents, as well as between the last incident and the date of the suit. Evidence in the crime articles are mutually complementary; collectively they constitute the judge’s persuasion. In case one was missing or dismissed, then it becomes impossible to identify the complete scope of its influence. Such invalid evidence then, constituted the opinion the court resolved to.”4

Moreover, the Court of Cassation is also clear that suspicion of prostitution or debauchery is not sufficient grounds to press charges without clear evidence. Nor is suspicion a justification for violating privacy. The court states:

“It is established that it is no affront to justice, to allow a criminal escape punishment, as much as justice is undermined when people’s freedoms are encroached upon and when they arrested with no credible cause.. It is also established that in flagrante delicto in an offense the condition applies to the crime not to the individual who committed it. The police officer who was alerted about the crime, through others, does not establish the state in flagrante delicto, as long as he did not witness an effect of the offense himself, that would indicate its execution. The effect of the incident outlined in the verdict does not indicate what would affirm that the appellant was witnessed in the act of committing an offense, as delineated by article 30 of the law of criminal procedures. It is incorrect then to rely on the assumption that while being arrested she was known to the police as someone who habitually practised prostitution. Even if confirmed by the owner of the apartment where she was arrested. The appellant’s appearance in some apartment and the reporting of its owner to the police that she came with the intention of practising prostitution and that she is used to doing so, all of this, does not in itself foretell that the police officer was aware with certainty that the crime was committed. Therefore, what occurred to the appellant was a clear arrest with no justification and no legal basis. According to article 34 of the law of criminal procedures, as amended by article 37 for the year 1972, no police officer can apprehend a defendant except in cases of in flagrante delicto and with the conditions stipulated.”5

All these stipulations and explanatory precedents to the condition of habituality result in judges in Misdemeanours and Appeal courts, in many cases, to acquit the defendants from the charges of habitual practice of debauchery. However, these terms and stipulations do not protect against charges of publicizing online materials inciting debauchery. In many cases where charges of publicizing material inciting debauchery are brought, the evidence is an image sent by the targeted individual to an undercover policeman or informant in communication taking place in a private chat room. In this regard, EIPR lawyer Alaa Farouk comments:

“A private conversation between two people cannot be considered as publicizing, as this means sharing in public. However, vague expressions and elastic laws do not clarify the nature of the charge of advertising or what methods of publication are meant, which allows for people to be prosecuted.”

The Problematics of Law 10/1961: Ambiguous Interpretations and Vague Texts

These observations on the role of the Public Prosecution and the courts lead us to a discussion of Law 10/1961 which criminalizes prostitution and debauchery and how ambiguity in its statutes leads to the pervasiveness of the judicial practices and interpretations we describe here. In addition to the fact that the text of the law itself criminalizes forms of consensual relations between adults, the courts’ interpretations of the text of Law 10/1961 reveal additional problems with the text of this law.

The main problematics are:

Heterosexual men are protected but not men who have sex with men or female sex workers

The most significant problem with the law lies in the disparity that exists in both the application and interpretation of the law in protecting heterosexual men but not gay men and female sex workers. This tendency is evident in three types of ruling by the Court of Cassation. The first category refers to the acquittal of heterosexual men charged with buying sex from women. According to the rulings of the Court of Cassation, a man who buys sex from women “habitually practising prostitution” shall not be accused of being a partner in this habitual crime. This is because partnership, as interpreted by the courts, requires that the man assists the woman who is “habitually practising prostitution” with means that would enable her continuing engagement in sex work. The court states:

“The partner derives his definition as such, from partnering in the act committed, from his intention in it and from the crime that was committed based on that partnership. His intention should be connected to all elements of the crime committed. If the act of the appellant — assuming that a crime of habitual prostitution has been upheld against the person with whom debauchery was committed — is not sufficient to establish his partnership in crime as defined in the law stated above in any means of partnership as stipulated in Article 40 of the criminal code as his intention was not to contribute with her to the criminal act (presumed to have occurred), which is the habitual practice of vice with people indiscriminately or in assisting her to undertake this act by offering means and facilitation to enable the act, or at least by removing impediments, which nullifies the moral element necessary to incriminate the partner. As this is the case, and given that the act attributed to the appellant in the ruling under appeal does not fall under any other punitive text, and the verdict under appeal had convicted him of the practice of debauchery with women indiscriminately, the ruling under appeal is found erroneous in its application and interpretation of the law which necessitates overturning it and cancelling the ruling appealed, of convicting the appellant, and his acquittal of all charges.”6

Moreover, the man here is not to be considered as having incited women to commit prostitution or assisting them in the act. This is because inciting requires the presence of a third party not the person buying sex himself. Assisting requires monetary expenditure on sex workers for a period of time. The court states:

“The crime of incitement to commit debauchery or prostitution […] is only upheld against a person inciting another, or assisting them, in the practice of vice with others indiscriminately, or facilitating this for them. It is not upheld when the act is committed by the inciter for the aim of practising vice with the incited. The crime of assisting a woman to practice prostitution is only upheld if this assistance takes the form of monetary expenditure on the woman. It is also not upheld if the expenditure on the prostitute is for the purpose of securing her access to prostitution; expenditure requires an element of time continuity, whether long or short.7

Similarly, it is not possible to charge a heterosexual man with habitual debauchery for having sex with women even if the element of habituality has been established. This is because the law interprets habitual prostitution as a woman having sex with men indiscriminately, while debauchery is interpreted as the act of a man having sex with other men indiscriminately. This means that if a man is to have sex with women indiscriminately, according to the rulings of the Court of Cassation, he does not face a penalty. The court states:

Given the absence of any form of partnership on the part of the appellant in the crime of facilitating prostitution, and given that the act attributed to him does not fall under any other punitive text, prosecuting him in spite of this is an error in the law that necessitates an appeal of the verdict and his acquittal... The legislator’s terms in the first paragraph of the first article of the stated law include all forms of incitement to prostitution and facilitating its practice for both men and women equally. Applying this first paragraph of Article 6 only to the woman practising prostitution, enabled by a certain form of assistance and facilitation, which is the assistance that takes the shape of monetary expenditure in all its forms, whether wholly or partially, necessitates continuity, for a period of time, whether long or short. The crime of incitement to vice is not upheld if the act is done by the inciter with the aim of his own practice of vice with the incited.”

“The habitual practice of debauchery or prostitution indiscriminately establishes the required elements of the crime whether regarding a man or a woman’s vice. Prostitution is attributed when a woman who offers her honour to every seeker, indiscriminately. Debauchery is attributed to a man when he offers his honour to other men indiscriminately.”8

2. The strict interpretation of the law to punish gay men or men who have sex with men

The strict interpretation of the law to punish gay men or men who have sex with men comes in the context of the court’s interpretation of the crime of “habitual practice of debauchery”. Despite the care taken to apply conditions that establish habituality, including “indiscriminate behaviour” as explained above, in cases of debauchery, the presence of only one sexual partner and the fact that the man has not engaged in sex in return for monetary payment were not considered sufficient grounds to deem that the element of habituality was not present. In these cases, the judge considered monetary return to be complementary evidence and not the sole evidence for the habitual practice of debauchery. The court states:

“The legislator has explicitly pointed out in this statute and its interpretation that the crime — the habitual practice of prostitution and debauchery — is established by having sex with people indiscriminately on a habitual basis. It is not necessary to establish that the practice of debauchery or prostitution in exchange of payment, although the existence of a monetary return constitutes complementary evidence of absence of discrimination between people with whom debauchery is committed. Thus, and since the reasoned ruling had convicted the appealed against on charges of habitual practice of debauchery, and given that the suit has stated that the Head of the Morality Police Unit noted in his report that the interrogations had shown that the appealed against practices debauchery in his residence with others in exchange for payment, he issued a prosecution permit and went to the residence of the aforementioned. Upon raiding it, he seized him in a sexual act with the appealed against. Upon asking the first, he stated that he is committing debauchery with the appealed against for no exchanged remuneration and that he had engaged in this act many times before. The ruling included this incident against the appealed against as confirmed by the Head of the Morality Police Unit in his report as well as the report of the witness. Therefore, alleging that the ruling misapplied the law, by citing that evidence of practising debauchery in exchange for payment is necessary to establish the crime, is unfounded.”9

References:

1Challenge no.1904/Y66, Session 9 June 2005, Cassation, decision no. 56

2 Challenge no.5883/Y53, Session 22 November 1984

3 Challenge no.1806/Y31, Session 7 May 1962, Decision no.110

4 Challenge no.1658/Y39, Session 18 January, 1970, Decision no.27

5 Challenge no.1207/Y54, Session 8 October 1984, Decision no.139

6 Challenge no.24450/Y59, Session 5 December 1994

7 Challenge no.6706/Y64, Session 7 June 1999

8Challenge no.4693/Y66, Session 12 May 2003, Decision no.83

9Appeal no.863/Y45, Session 12 May 1975, Decision no.97