II. Homosexual Conduct and the Law: The Conditions for a Crackdown

A. Khaled’s Story

Harassment of men suspected of homosexual conduct did not begin with the Queen Boat case. Khaled, twenty-five, told Human Rights Watch a story of how the apparatus of police repression worked. Khaled says,

I was in the fourth year at university: it was exam time, in May 2000. I went to Tahrir Square on a Thursday evening, I was standing waiting for a taxi. Suddenly a police wagon stopped in front of me, a truck full of police.

A man jumped down in front of me and asked for my ID. He was the head of the Cairo Vice Squad, Taha Embaby himself, I later found out—but I didn’t know this at the time. He was wearing plainclothes. Then a guy came out of the van. His nickname is Mustafa “Laila Elwi.”¹⁴ … He’s gay but is an informer. The officer asked him about me. Mustafa “Laila Elwi” said, “Yes, I know this person.” ¹⁵

According to Khaled, Taha Embaby asked him, “Are you gay?”

He used the term “gay” in English. I said I didn’t know what the word meant. He used the word because he wants you to repeat it back to him as an answer. And if you know what it means, if you pronounce it in the English way, then you are definitely gay. Unfortunately, I fell into the trap more or less—I said I didn’t know what “gay” meant, but I pronounced the word as if I did. And the uniformed guards came out and dragged me off as if I were a murderer or drug dealer. …

There were six men inside the van. The police started collecting more. The officer confirmed they were gay through this informer. Finally, there were twenty or twenty-five people prisoners. There were two vans. … Each van would fill, then be sent to the station, then sent out again.

Police, according to Khaled, were picking up men as they entered the bar in the Nile Hilton Hotel, a popular gay gathering place, as well as what were believed to be gay cruising areas in Tahrir Square.

They took us to the second floor of al-Azbekiya police station. I had my mobile: I rang my family to say I’d been arrested and I didn’t know why. My mother and father came. It was one of the worst moments of my life. … The head of the Vice Squad had me called from the room. He confronted me with my father. He said “This son of yours is a khawal, he gets fucked.” And he said I was caught in the act. He said, “I’ll prove it.” He made me undo my trousers. By lucky chance I was wearing ordinary underwear—white underwear, the same ordinary design and color as most Egyptians wear. He believed colored underwear meant a person was not only gay but passive. And in Egypt it is a catastrophe to be known as a gay bottom. … Embaby got very mad. “No problem,” he said. “OK, so he doesn’t get fucked, but maybe he still fucks children and khawalat.” The effect on my father was electric. He left me there and he went home.

Every time a family member asked after one of the men that night, the family would leave and go home because they were so horrified by what they found, and Taha Embaby and his men tried to horrify them.

Khaled was returned to the room where police were recording the arrestees’ names. “There were over a hundred and fifty, I think. I was surprised.”

Taha Embaby was surprised too. He said he couldn’t believe there were this many khawalat in Egypt. He said: “I have to do something: I must either kill you or make you regret that you were born.” He picked out people who were wearing what in Egypt is considered “debauched” dress—foreign or too-stylish clothes or jewelry.

One boy had an earring and they beat him half to death.

He abused people verbally: “You’re the kids who have suddenly appeared and are corrupting this country; you look like you’re being fucked by the guys standing behind you.” He’d ask each guy his name, then turn it into a woman’s. Then he started hitting them, slapping and punching them in the face and kicking them with his boots.

Sent to cells for the night, in the morning the prisoners were forced to sign arrest reports:

They started calling each person by name. Those who refused to sign would get beaten very badly. They hit [us] with a big stick and also a whip. One of the guys swore at an officer. They tied his ankles and hung him from the ceiling by them. Then they started beating him on the soles of his feet. After the first few were beaten most just signed.

I was one of the last. I refused. They started beating me with the stick, and with the whip on my back. A new policeman came, with an iron bar in his hand. I was weeping, but I refused to cry out. The officer took the bar and beat me. I tried to use my hand to ward off the blows: I got hit on the hand: I still have the scar.¹⁶ Finally I was exhausted. I fell on the floor. I said, I’ll sign. All my body was broken up by this beating. I don’t know how long it went on, ten, fifteen minutes.¹⁷

It was Friday morning: the prisoners were taken to the al-Azbekiya niyaba.¹⁸

There was a huge number of family members gathered in front of the niyaba. … And you can only imagine how we felt going out, with family members looking at people. Yet the family members saw how we were wearing the bruises of our beatings: and they started to believe that we were victims of trumped-up charges.

Without interrogating the prisoners, prosecutors charged them with “habitual practice of debauchery,” and ordered their release pending trial. Then they were returned to the al-Azbekiya lockup. There, according to Khaled, “We were all beaten without exception. I still have a scar over my left eye”:

I will never forget that night. This was at al-Azbekiya on the floor above the ground floor. They stood us in line and an officer went by, one by one, abusing us, slapping us, spitting in our faces. “Are you a whore?” he’d ask. We all said no. He said, “You sicken my eyes. It shows on you that you are whores.” He slapped my face several times and spit in my face. The five boys who they thought were dressed effeminately were brought forward again and all the guards joined in beating them with slaps and punches in the face and stomach.

Then they were taken to Embaby’s office, in the Abdin police station.

My father had found a wasta [influential protector]to try to get me free—because Taha Embaby didn’t seem to want to let go of us, though the prosecutor had ordered us freed. There were about seven who had friends agitating for their release. Taha Embaby was furious. …He started making fun of the seven of us and slapping our faces. He said we were the scum of the earth, an abomination to Egypt before God, we had no right to live. He started hitting us again with the whip on our backs. … Taha Embaby, I believe, is insane. This man is dangerous, he is really not a human like other humans. He beat me with the whip and it took a month for the wounds and the pain to heal.

He joined us with the rest who were left. And the guards took all of us down and let us go. … When we left the station we were in a state of complete nervous and physical collapse. Some of us could barely stand. I was embarrassed for my friends, for my family, to see me like this. I looked like a beaten dog. I prayed for any of my friends who faced such a situation in the future, or who had the evil luck to stand one day face to face with the brutality of Taha Embaby. ¹⁹

B. The Development of “Debauchery”

Khaled’s story—that of a student who suddenly found himself caught up in a police roundup—points to many of the themes this report will explore. It reveals that the Queen Boat case drew on existing police practice—on a mounting impetus toward punishing stigmatized sexual behavior.

Indeed, the legal framework for persecution had been put in place almost fifty years before. The first issue to be examined here is: what law brought Khaled before the Vice Squad? How does Egypt criminalize sex between men?

Since 2001, Egypt has steadily claimed it has no such laws. Responding to a U.N. expert's criticism of the Queen Boat trial, for example, the government alleged its books held “no provision that designates sexual perversion as a criminal offence”²⁰; and in 2003, the speaker of Egypt’s People’s Assembly told the European Parliament that “Egypt’s penal code does not include punitive measures against the homosexuals as the country’s law by no means interferes in the private affairs of individuals.” ²¹

These statements are false. Egyptian legislation has effectively criminalized male homosexual conduct for over fifty years. The prohibition appears in article 9(c) of Egypt’s “Law on the Combating of Prostitution” (Law 10 of 1961, first passed ten years before). This provision punishes the “habitual” practice of fujur and di`ara with up to three years’ imprisonment, plus fines.²² The Arabic term di`ara isgenerally understood to mean prostitution in the sense of commercial sex, while fujur is a much broader term (translated here as “debauchery”) encompassing a concept of sexual excess.

As Appendix B documents, the language of the law sprang from a sense of moral urgency as colonial domination drew to a close. In a rush to prohibit prostitution—seen as representing not just sin but political subjugation—Egypt’s parliament enacted a much more sweeping prohibition. Veering between punishing sex work and prohibiting sexual misconduct in general, legislators stated they meant di`ara to describe “immorality” by women, fujur “immorality” by men. Fujur, an instrument of moral condemnation rather than legal exactitude, took on a life of its own as courts and the criminal justice system determined what was immoral for males, and concentrated on homosexual conduct.

In the following decades, Egypt’s Cassation Court was called on repeatedly to rule on what di`ara and fujur meant, and their connection to sex work in the narrow sense.²³The most significant decision came in 1975. The Vice Squad had broken into a private home, and found one man in the act of sexually penetrating another. The passive partner was charged with fujur. He testified that he had had sex with men repeatedly, but for no financial return.²⁴

The Cassation Court found he was still culpable, meaning that fujur was legally uncoupled from sex work, but connected to male homosexual conduct.

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.²⁵

This ruling is cited again and again in contemporary Egyptian court verdicts, to justify convicting men for having non-commercial sexual relations with other men.

Fujur or debauchery thus was divorced from prostitution per se, and came to mean non-commercial male homosexual conduct. In the process, the application of Law 10/1961 to men and to women diverged, moving in radically different directions. Repeatedly, courts held that non-commercial sex between a woman and a man was not punishable even if practiced “habitually.” ²⁶ Non-commercial sex between two men was.

The legal fate of the other partner in the sexual act also differed drastically. The ban on di`ara falls upon the (female) prostitute alone. Only women are liable before the law; the men who buy sex are innocent. Men caught in flagrante with women found to be prostitutes normally go home after filing testimony against their sexual partners.²⁷

Fujur cases seem originally to have followed a similar pattern—in which the “passive” participant was seen as exclusively “debauched,” the “active” as a comparatively innocent “pleasure-seeker.” In the 1975 case mentioned above, two men were caught in the act of penetration; the penetrated man was hauled into court and sentenced to six months in prison for “debauchery,” while the penetrator testified against him and went home.

Such a practice reflects, of course, not just the influence of prostitution cases but a construction of sexuality in which role trumps object. What matters is less the sex of one's object-choice than whether one penetrates (and retains the attendant prestige of masculinity) or is penetrated (and loses symbolic and social authority).

Yet now, in case after case, men are now convicted of “debauchery” for relations with other men regardless of their sexual roles. Both partners in male homosexual sex are now criminals.

The roots of this shift are debatable. Tectonic plates are clearly moving in the social understanding of sexuality: a common if still tentative identity between “active” and “passive” partners has emerged in Egypt, sharing a common stigma. Western models of “homosexuality,” in which emphasis on role gives way to the overriding significance of object-choice, have played a part. Yet the change cannot simply be reduced to their influence. The legal development also stems logically from eliminating the financial requirement for “debauchery” prosecutions. Exchanging money marks out different social roles—purchaser and seller—as well as sexual ones. With that element gone, the tendency increases for the two partners to collapse indistinguishably into one imputation of guilt.

Simply put: fujur in Egyptian law now means homosexual relations between men, whether commercial or not. The law requires that the act be “habitual”—legally taken to mean that it must have been committed more than once in three years, with more than one person.

It is tempting to say the history of this provision illustrates a law not on Egypt’s books: that of unintended consequences. Anxieties over sex work created penalties that would find their full, harsh utility during a second moral panic, in a new millennium. Today article 9(c) of Law 10/1961 is Egypt’s primary tool in punishing male homosexual conduct.

C. “Dance, Khawalat, Dance”: Growing Harassment and the Dangers of Community

Khaled’s story also shows the growing police attention to a phenomenon of late-1990s Cairo: the fact that a substantial subculture of men having sex with men gathered, called themselves “gay,” and grew.

Manyself-identified gay men in Egypt recall the years before 2001 as an interval of connectedness and comparative liberation. In fact, most who joined in what some now describe as Cairo’s fin-de-siecle “scene” did so secretively. Few if any disclosed their sexuality to their heterosexual friends, much less their families. Opportunities for being “out”—for affirming one’s desires to others who shared them—were confined to private parties, friendly cafes, or a few clubs (the Queen Boat discotheque and the Nile Hilton bar among them) on selected nights of the week.

Cairo had long had its cruising areas: places where men interested in sex with men could covertly encounter one another. The pubs and parties emerging in the 1990s, although quiet, allowed still more space and apparent safety for friendship and conversation. In the process, some people began to coalesce around a shared identity, often using the term “gay.” Participants were not exclusively drawn from the privileged. They came from diverse Cairene classes: the list of those seized at the Queen Boat raid in May 2001 includes doctors and teachers, but also truck-drivers and electrical repairmen. Indeed, Human Rights Watch's own research indicates that the idea of a “gay” identity is widely disseminated, even among working-class men in towns outside Cairo. Men were drawn to these gatherings not only by the need for love or sex, but by the hope of making friends, an individual aspiration which contributed to the collective construction of an incipient community.

The aspiration could look very different to the police.

We received information that some young perverts frequent the Taverne bar in the Nile Hilton to hunt pleasure-seekers to practice perversion with them. Today, as we were inside the bar to observe the status of public morality … we saw a person walking around the tables and acting in a way to draw attention, and walking in a female way, touching men inside the bar. We saw him walking outside the bar and walking in the corridors of the hotel, trying to touch men. Then we saw him whispering to a man and they both walked out together. Secret investigations showed that the first person who was being watched is a sexual pervert who practices debauchery with men with no discrimination, and so does the second. The first is a passive whereas the second is active. So we approached them and revealed our identity. They were both escorted to the headquarters.²⁸

Ismail, in his early twenties when arrested in 1998, was the subject of this police report. He told us how he was arrested near the Hilton bar one Thursday night:

I was waiting for a friend who had gone to the bathroom. While I was standing there the police stopped me in the lobby and took my ID card.

They took me to the Tourist Police office in the basement of the Hilton. Thirteen or fourteen people were there, all accused of having sex with each other. … The officers had one Egyptian with them, and he gave them information about people who were entering the Hilton.

They paired us off, they said, “You had sex with you.” I was paired with another one of the arrested. They took us all to the Mugamma`.²⁹ I didn’t know this guy I was paired with. He signed the statement they wrote for him—they slapped him and he agreed. I refused to sign. … And so three officers started beating me. I was kicked, punched, and slapped. They brought a whip and started flogging me to sign. I finally did; I would have lost my skin otherwise.³⁰

Another police narrative of “perverts” reads:

We received information that some young sexual perverts frequent Ramsis Square to hunt clients who are seeking forbidden desires with men, to practice debauchery with them. … Today while at the Square we saw someone sitting at the bus stop. He sat next to someone, they had a conversation, and then he put his hand on the thigh of the man and tried to grab his penis. But the man stood up and walked away. We approached [the man who walked away], revealed our identities and what we saw, and he stated that the person sat next to him and asked for his telephone number and that he grabbed his penis and that the man walked away. So we approached the person, revealed our identities and what we saw and heard from the other person … and he told us that he is used to practicing passive debauchery since his childhood. …The other person refused to come with us or tell us his name to protect his reputation.³¹

The passage is from an arrest report in a 1997 case. Nabil, the man described, twenty-eight years old when he spoke to us in 2002, tells his own story:

I was walking near Ramsis train station. I met some of my gay friends at a caf� called Shobokshy. I stopped inside to say hello and suddenly we were surrounded by policemen in plainclothes who asked for our IDs. They ordered all twelve of us to go with them to the police station.³²

The late 1990s saw intensifying attention by the Cairo Vice Squad, in particular, to the sites and circumstances in which gay men met other men. Police apparently felt growing pressure to “clean up” the places where “perversion” transpired. Khaled even remembers that, while jailed, “I heard guards saying that the head of the Vice Squad [Taha Embaby] had promised to the minister of the interior that within a year he would have gotten rid of all the gays in downtown Cairo.”³³

The provisions the Vice Squad used derived from a law against sex work; likewise, the Vice Squad’s developing approach to “debauchery” drew upon prostitution cases. The standard templates for fujur arrest reports describe a man “walking in a way that draws attention [and] seduces instincts,” or moving “his tongue in a seductive way.” One arrest report from 1997 makes the analogy explicit, noting the “increase in the number of sexual perverts who conduct themselves as do female prostitutes … in a seductive way that contradicts Islamic values.”³⁴ The suspect is regularly said to accost another person, who offers testimony of being solicited but is released without identifying himself.

Vice Squad officers spun mythologies about how to identify khawalat. Colored underwear, long hair, or tattoos were all telltale signs. Police “assumed because his hairstyle was strange that he was gay,” one victim told us about a fellow arrestee.³⁵

Yet men who had sex with men rarely rendered themselves as conspicuous as the police claimed. To unearth them, the Vice Squad instead relied on networks of informers. Kamal, an illiterate shoeshiner arrested in the Queen Boat case, described how police sent informers into cruising areas: “They just round up some ‘girls’, the kind who would be in Ramsis. And then these bottoms are thrown down from the van … and they go out and they say: that one’s a khawal. They would go and talk to someone, and the officer would go over and pick up the person.”³⁶

Police also began raiding bars and clubs, using informers to pick out gay men inside. The Queen Boat was raided several times before the mass arrests in May 2001. One man told Human Rights Watch of an incursion in early 2000:

Suddenly we heard that the police were waiting at the door. … We’d heard that the police came in there several times. They’d take people who were obviously gay. Many in the discotheque had been arrested before. … But my friends and I thought we were not effeminate.

But as I was leaving, officers stopped me and asked for my ID card. … This man said “OK, OK, I know you. Come with me.” And he took me along. I said: “How did you know me?” I got no answer. He took me to this microbus. There were a lot of people in it, a dozen or more. One of them was a man who I think was their informer. They arrested him also, I think to cover the fact he was informing. ³⁷

Also common in fujur cases was the torture Khaled described. Sometimes it was used to extract confessions. Nabil told us that after his arrest, he was beaten to sign the arrest report: “I asked what was there, and then punches and slaps came from everywhere. I had to sign eventually. They grabbed my hair and shook my head till I was dizzy. … The police all acted as if I were too disgusting even to spit in my face.” ³⁸

Sometimes, however, brutality seemed purely punitive. Magdi, twenty-two when Human Rights Watch spoke to him in 2003, told a harrowing story of his arrest in 1997, when he was seventeen. He remembers, “I had long hair and they suspected I was gay.”

I was picked up and put in a car when I was walking normally along the street. …They took me to al-Azbekiya Police Station. I spent eight days there. There were about twenty or twenty-five of us picked up the first day, mostly about the same age, in their twenties. They said it was fujur we were arrested for…. But when you said “Why,” they’d say it was none of your business and hit you. …

After that, on each day, they picked up more people, five or ten or eleven every day. All for fujur. At the end of the eight days there were maybe eighty or a hundred of us. They were doing a general sweep in Azbekiya for khawalat. Not everybody was tortured. They concentrated on those who were picked up the first day and we were tortured all the time.

They tortured us with whips. And they burned several of us. They made us strip naked. They’d handcuff you to bolts in the wall with your arms extended, and your feet chained too, so that you were sort of hanging in the middle of the room. And then they burned us with their lighters. This was upstairs, in a special room. They’d move you up there to do this, one by one, or sometimes two by two. I went there and I collapsed because it was so painful. All they burned was my arm, because I fainted after that.

Magdi displayed a one-inch scar on his left arm, left by the cigarette lighter.

When they came to do the other stuff, they couldn’t do it, because I’d already fainted after the arm. But with other people they burned the anus, or the penis, the shaft and the head. How long they would use the lighter depended on how long the lighter would last. …

When they found out the lighter fuel ran out too quickly, they’d get candles and drop wax on the anus and the penis. Everybody fainted at some point. The police would bring people back to the cell after torture, unconscious. Sitting downstairs you could hear the people screaming in the room upstairs. Our nerves were shot, each one would be waiting for his turn. The ones who’d refuse to go upstairs would be dragged up.

They had these big butane gas containers. They would lift them up to the ceiling with chains, then they’d hang you under them, with your hands and feet chained behind you. You’d hang like a chandelier, and if you struggled and the container fell on your back it could break your back and kill you. You would hang there for two, three hours, I don’t know the time. They did this to me, to a lot of us. ³⁹

The Cairo Vice Squad has been the driving force in the campaign against homosexual conduct.⁴⁰ By the late 1990s, though, police in some other cities joined in the harassment. Kamal, the shoeshiner, told us what had happened in his hometown of Mansoura:

There also they used to take us from the streets. A group of friends, we would go out at night and go out for a walk. But when we’d see the government, we’d run away, because some people would point to the officers and say, “These are khawalat.” Ordinary people who were offended to have us around.

So the police would take us to the station and keep us a couple of hours and then let us go. They would make us dance for them, and ululate [zaghrata], one girl after another. They’d watch us dance and laugh at us. They’d tell us, “If you want to get out, you must dance. Dance, khawalat, dance!” So we’d dance for them for a few hours.⁴¹

When we asked whether the men did this voluntarily, Kamal seemed puzzled by the question. He said, “We danced because we wanted them to let us go.”

Yet in those years, homosexual conduct was still treated as a sporadic, individual offense—not a collective social threat. While mass arrests furnished police with evidence of a growing community, they still charged the arrested men, as in Khaled’s case, individually. Sentences remained light, tending toward the minimum penalty; often cases were not sent to prosecutors—and a few days’ imprisonment served as punishment in itself.

The crackdown that has burgeoned since 2001 was enabled by the sudden, media-spread perception that men having sex with men were a menacing, manifold group, endangering the nation, demanding drastic measures. That belief was fostered by the furor around the Queen Boat case.

¹⁴ Laila Elwi is a popular Egyptian actress. Human Rights Watch has changed the given name (but not the nickname) of this informer, whom victims have implicated in numerous cases, to protect both him and his victims from retaliation.

¹⁵ Human Rights Watch interview with Khaled (not his real name), Cairo, Egypt, February 7, 2003.

¹⁶ During the interview Human Rights Watch observed this scar, as well as the other described below.

¹⁷ Each defendant in the case was given an individual case file and number, to preserve the fiction that no mass sweep had taken place. Human Rights Watch has obtained five files from the case (al-Azbekiya Court of Misdemeanors); the spread between the lowest and highest case file numbers (twenty-three) indicates a large number of victims arrested--Khaled claimed it exceeded one hundred. Each of the arrest reports contains the same language: “Today while passing to observe the state of morality, we saw a person walking in front of the toilets in Ramsis Square, and committing acts and gestures that could arouse the instincts of youth sexually to practice debauchery with him. We approached him, revealed our identities and the nature of our mission, and escorted him to the headquarters of the administration, then interrogated him.” Documents on file at Human Rights Watch.

¹⁸ Niyaba in Egyptian Arabic refers to the office as well as person of the state prosecutor: thus the al-Azbekiya niyaba is the prosecutor’s office for the al-Azbekiya police precinct.

¹⁹ On July 26, 2000, confronted with dozens of identical arrest reports, Judge Abdel Haq Tawfiq dismissed all the men’s cases, finding them “not guilty for lack of evidence.”

Repeated testimonies in this report implicate Taha Embaby in torture. On May 1, 2003, representatives of Human Rights Watch visited him at his office in Abdin police station, intending to offer him an opportunity to address these allegations. Embaby refused to be interviewed.

²⁰ “Report of the Special Rapporteur on the Independence of Judges and Lawyers,” U.N. Doc. E/CN.4/2002/72, February 11, 2002, at 63.

²¹ Letter from Ahmed Fathi Sourour, speaker of the Egyptian People’s Assembly, to Pat Cox, President of the European Parliament, April 18, 2003. The letter came in response to a European Parliament resolution condemning the arrest and prosecution of gay men in Egypt.

²² See Appendix B for detailed information on Law 10 and its passage.

²³ Egypt’s is a civil-law system in which stare decisis—the principle of judicial precedent—is not in effect, and judge-made law not recognized. However, the “moral authority” of the Court of Cassation remains strong, according to constitutional lawyer Ahmed Seif al-Islam of the Hisham Mubarak Law Center. Within the Court of Cassation, a Chamber for the Unification of Principles regularly promulgates the legal principles underlying the rulings of the court's chambers; it is a mechanism through which the court's decisions become “theoretically binding” across its chambers and upon lower courts. Human Rights Watch interview with Ahmed Seif al-Islam, Cairo, Egypt, February 16, 2003.

²⁴ In fact, prosecutors had charged the defendant under a curious collection of articles from Law 10/1961—essentially with “inducing” others and running his residence for the purposes of debauchery, but not with debauchery itself. The first-instance court, however, changed the charge, and sentenced the defendant to six months of imprisonment under article 9(c) of the law. The prosecution itself appealed the case to the Cassation Court, saying that a defendant could not be convicted under article 9(c) without taking money for sex. The Court found otherwise.

²⁵ Cassation Court ruling, case no. 683/Judicial Year 45, May 12, 1975. A further confusion obtrudes. The 1975 decision actually states that di'ara as well as fujur need not entail the exchange of money. This finding, as the Appendix shows, is consistent with the record of legislators debating the original law, at least some of whom seemed to intend both terms to penalize non-commercial “promiscuity” in general. However, this passage in the 1975 decision is countervailed, in practice and in the evident understanding of the criminal justice system by other Cassation Court decisions holding that non-commercial sex between men and women does not fall under di`ara, and is not criminalized. What police, prosecutors, and particularly judges cling to from the 1975 decision is the finding that male homosexual sex is a crime even if not commercial.

²⁶ The Cassation Court, when required to concentrate on non-commercial heterosexual sex (rather than between two men) repeatedly held that di`ara was specifically commercial sex, and criminal for women. Thus a 1980 verdict, while holding that “Running a house for di`ara could be proved without necessarily receiving financial reward,” made it clear that di`ara itself was constituted by women’s receiving money for sex. (Cassation Court ruling, case no. 2365/Judicial Year 49, April 17, 1980.) A 1991 verdict overturned the conviction of a woman for prostitution, noting that she had engaged in the act for pleasure rather than for profit: it stated that di`ara “excludes special cases as when a person engages in vice for her own sexual pleasure.” (Cassation Court ruling, case no. 552/Judicial Year 60, March 5, 1991.)

And police and prosecutors pursuing women under the law continued to demand evidence that sex had been sold. The very record of court decisions makes this clear. Human Rights Watch has examined forty-one Cassation Court decisions handed down since 1951, in cases under the Law on the Combating of Prostitution; in 40, the defendants were women, and all these involved commercial heterosexual sex. The one decision which did not entail the exchange of money was the 1975 decision involving two men.

In stark contrast, however, the Cassation Court continued to define fujur as non-commercial sex between men. It held that “a man is charged with debauchery [fujur]” only “when he offers his honor [‘ird] to other men with no distinction.” (Cassation Court ruling, case no. 99/Judicial Year 58, April 21, 1988; almost identical phrasing is found in Cassation Court ruling no. 9155/Judicial Year 56, November 26, 1990.) And it held that men's practice of non-commercial “vice” (e.g., extramarital sex) with women was not fujur, falling “out of the range of criminalization, because it does not fall under any other punitive text.” (Cassation Court ruling, case no. 8838/Judicial Year 60, October 13, 1997.)

²⁷ Cases where lower courts tried to hold male customers accountable were thrown out by the Court of Cassation. See, for example , Cassation Court ruling, case no. 99/ Judicial Year 58, April 21, 1988; Cassation Court ruling, case no. 2434/Judicial Year 58, June 8, 1988; Cassation Court ruling, case no. 49867/Judicial Year 59, November 14, 1996; and Cassation Court ruling, case no. 8838/Judicial Year 60, October 13, 1997. A study by the National Center for Social and Criminal Research, a state institute, urged as early as 1961 that male “pleasure-seekers” who purchase commercial sex should be punished equally with the women. The recommendation was never implemented. Cited in Mohamed Nyazi Hataata, Jaraa’im al-Baghaa, Diraasa Muqarana [Crimes of Prostitution, A Comparative Study], Doctoral Dissertation, Faculty of Law, Cairo University, 1961, pp. 161-62.

²⁸ Arrest report dated December 11, 1998. Exact date and number of case file have been suppressed to preserve the anonymity of the victim; case records are on file at Human Rights Watch.

²⁹ The Mugamma`, a large gray edifice presented to the Egyptian government by the Soviet Union, stands in Tahrir Square and houses Interior Ministry and other offices. A Vice Squad office takes up most of its thirteenth floor.

³⁰ Human Rights Watch interview with Ismail (not his real name), Cairo, Egypt, February 18, 2003. Ismail did not appear at his trial, and was sentenced in absentia to three years’ imprisonment, followed by three years’ police supervision, for the “habitual practice of debauchery.”

³¹ Arrest report written by officer Alaa Taha, March 4, 1997, Al-Azbekiya Court of Misdemeanors, on file at Human Rights Watch.

³² Human Rights Watch interview with Nabil (not his real name), Cairo, Egypt, August 16, 2002.

³³ Human Rights Watch interview with Khaled, Cairo, Egypt, February 7, 2003.

³⁴ Arrest report by officer Ahmed Genaidi, dated July 9, 1997, in court file, Qasr al-Nil Court of Misdemeanors, on file at Human Rights Watch.

³⁵ Human Rights Watch interview with Ayman, Cairo, Egypt, April 17, 2003.

³⁶ Human Rights Watch interview with Kamal (not his real name), Cairo, Egypt, March 4, 2003

³⁷ Human Rights Watch interview with Ayman (not his real name), Cairo, Egypt, April 17, 2003. Ayman was sentenced to three months’ imprisonment for the “habitual practice of debauchery,” but the sentence was overturned on appeal. Another man arrested in the same raid told the International Gay and Lesbian Human Rights Commission, “The police called my workplace and informed them and I was fired. I was unemployed for a long time after the end of the case. I still feel the effects of that period, it makes me very frightened.” Interview with Latif (not his real name) by Scott Long, International Gay and Lesbian Human Rights Commission, Cairo, Egypt, November 14, 2001.

³⁸ Human Rights Watch interview with Nabil, Cairo, Egypt, August 16, 2002. Nabil was sentenced in absentia to one year’s imprisonment and one year’s police supervision for the “habitual practice of debauchery” and went into hiding; verdict, case no. 2297/1997, Al-Azbekiya Court of Misdemeanors. See chapter VI for the continuation of Nabil’s story.

³⁹ Human Rights Watch interview with Magdi (not his real name), Cairo, Egypt, March 2, 2003. Magdi and the other detainees were only taken to see the prosecutor after eight days, although Egyptian law requires that prisoners see the niyaba within twenty-four hours of arrest. They were released by the niyaba; Magdi, who had given a false address, does not know whether the case went to court.

⁴⁰ Human Rights Watch's study of case files reveals that even now, while Vice Squad officers in downtown Cairo—in the precincts of Abdin, Qasr al-Nil, and al-Azbekiya, where arrests for homosexual conduct happen regularly—have a sophisticated apprehension of the law’s niceties, and prepare evidence expertly for prosecutors and courts, police in outlying areas may be less experienced. Sometimes those officers still try to frame men for practicing debauchery for money; prosecutors, understanding that the financial element is unnecessary, usually intervene to prune inessential elements from the allegation. In some cases officers may charge only “passive” partners with “debauchery” per se, and accuse “active” partners instead with “indecent assault” against the men they penetrated. Again, prosecutors ordinarily smooth out the differences and charge all under article 9(c). Fujur prosecutions have evolved gradually out of the model established by di`ara; in the hands of ill-trained officials, they lapse at times into older lineaments. For examples of such anomalies, see chapter IV below.

⁴¹ Human Rights Watch interview with Kamal (not his real name), Cairo, Egypt, March 4, 2003.

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March 2004