About the Book
"Article 230 : A History of the Criminalization of Homosexuality in Tunisia" traces the history of the Tunisian Sodomy Law, from its original appearance in an early draft of the 1913 Penal Code under the French Protectorate, to its contemporary application in Post-Revolution Tunisia. Based on original archival research, dozens of interviews with historians, Tunisian LGBTQ activists, diplomats, lawyers, and journalists, and legal analysis of Article 230 in the context of Tunisia’s constitutional and international human rights obligations, the report sheds light on the law’s colonial origins and its devastating effects on the Tunisian LGBTQ community in the present-day. The report additionally discusses the emergence of the Tunisian LGBTQ movement, and its critical efforts against Article 230, and for a free, egalitarian, and democratic Tunisia. The report seeks to respond to a number of pressing questions: Why did the drafters of the 1913 Tunisian Penal Code include a law criminalizing sodomy? How did the drafters decide on three years’ imprisonment as the appropriate punishment, given that said punishment has no clear basis in French law, Tunisian law, or Shari’a ? Should Article 230 be read as a pure product of colonialism, or is it rooted in certain—potentially erroneous—conceptions of the requirements of Shari’a or Tunisian tradition? How is Article 230 applied today, in Post-Revolution Tunisia? What strategies have LGBTQ Tunisians adopted in their struggle for the abrogation of the Tunisian sodomy law ?
I understood that in my country, I was considered a criminal serving a suspended sentence.Aziz, Tunisian nurse and LGBTQ Activist
Few would argue that 2019 will mark the year that Tunisia finally decriminalizes homosexuality, ridding itself of a brutal colonial legacy that continues to destroy the lives of LGBTQ Tunisians over a century after its initial appearance in 1913. But from the initial protests that set off the Arab Spring in 2011, to the promulgation of the most progressive constitution in the MENA region, to the birth of a dynamic and increasingly effective LGBTQ movement, Tunisia has consistently defied the world’s expectations. In 2011, Tunisians overthrew a dictatorship, beginning a complex and challenging transition towards democracy. If Tunisia is to live up to the bold promises of the 2011 Revolution, then Article 230 must go.
If a lawsuit challenging Article 230’s legality must wait until the formation of the Constitutional Court, the sodomy law’s unconstitutionality and incongruence with Tunisia’s international obligations is beyond dispute. Criminalizing individuals exclusively based on their sexual orientation violates the principle of equality under the law, while the process of investigating and proving Article 230 offenses often involves torture—in the form of anal examinations—and infringements on individuals’ right to privacy. Moreover, the text of Article 230 is impermissibly vague, providing police and judges with the power to define the law, rather than enforce it.
In spite of the important gains of the Tunisian Revolution, arrests and prosecutions for violations of the sodomy law continue unabated. Obtaining precise statistics regarding Article 230 cases remains a challenge. But Tunisian lawyers, journalists, and LGBTQ activists consistently refer to an uptick in Article 230 arrests after 2011, a trend that coincides with the rapid development of the Tunisian LGBTQ movement. Given the law’s ambiguous wording, and the contradictions between the French and Arabic versions, police, prosecutors and judges have broad flexibility in determining who gets arrested and imprisoned for alleged violations of Article 230. The Tunisian sodomy law, it appears, functionally means whatever law enforcement says it means.
At a time in which French officials feared the effects of “African heat on the sexual drive of both men and women,” and the “rampant and aberrant sexuality” of North Africans, it is perhaps not surprising that colonial officials sought to criminalize homosexuality in North Africa, even if it had been de jure decriminalized in metropolitan France.
The absence of explicit references to “homosexuality” in Tunisian criminal law prior to the French Protectorate, coupled with the fact that the 1913 Tunisian Penal Code largely mirrors the 1810 French Penal Code, lends credence to the idea that Article 230 is a pure product of colonialism, a relic of French rule with little relationship to Tunisia itself. But there is a potential flaw in this hypothesis—the 1810 French Penal Code makes no mention of “sodomy” or “homosexuality” either. Indeed, France had eliminated sodomy laws following the French Revolution in 1791, ninety years before the colonization of Tunisia. And while the French justice system continued to persecute individuals suspected of homosexuality in numerous ways throughout the 19th century, France had no sodomy laws on the books during the establishment of the Protectorate in 1881, nor during the drafting of the Tunisian Penal Code in 1913.