Last week, the High Court in Mombasa dismissed a petition filed by two alleged homosexuals who challenged the constitutionality of their undergoing an "anal examination" as "proof" of their sexual orientation. The ruling, which confirms the legality of such examinations in Kenya, has been widely criticised by domestic and international human rights organisations. But what is an anal examination, which countries still use them, and why are they controversial?
According to a high-level panel on forensic documentation, the Independent Forensic Expert Group (IFEG), an anal examination is "a digital examination of the anus using a gloved and lubricated finger of the examiner as well as visual inspection of the anal area and sometime the insertion of tubes of varying sizes. The examination is performed with the presumption that there are characteristic signs that correlate with consensual anal intercourse, namely laxity [or looseness] of the anal sphincter".
However, of 76 countries around the world where consensual same-sex conduct is illegal, only eight are recorded to have conducted anal exams since 2010. Namely, Cameroon, Egypt, Kenya, Lebanon, Tunisia, Turkmenistan, Uganda and Zambia.
So – the morality and legality of homosexuality aside – why is that, in the vast majority of cases where same-sex conduct is an offence, anal examinations are not used?
First, they are widely considered to constitute a form of cruel, inhuman, and degrading treatment. According to the United Nations Special Rapporteur on Torture, these exams amount “to torture or ill-treatment”. Similarly, according to IFEG, they “are inherently discriminatory and, in almost all instances, result in significant pain and suffering … [which, when] forcibly conducted … may amount to torture … [and] should be considered a form of sexual assault and rape”.
In last week’s ruling, Justice Mathew Emukule rejected such arguments on the grounds that the two men had signed consent forms. However, as the IFEG has argued, "ensuring informed consent is almost impossible for [anal] examinations … where individuals understand that State officials have the power to compel the examination, and non-compliance is likely to result in adverse legal outcomes, ill-treatment, and reprisals”. In their opinion, anal exams targeting homosexuals “should be presumed to be conducted forcibly". Such reasoning seems to hold for the recent case in Kenya where the accused were taken to a hospital in handcuffs and directed to have the exam by police.
Anal examinations under such conditions also seem to be unconstitutional. The reason: Kenya’s 2010 Constitution specifically declares “freedom from torture and cruel, inhuman or degrading treatment or punishment” to be a fundamental freedom.
The use of these "tests" is even more perplexing when one takes into account that, according to experts such as the IFEG, “There are no scientific studies that provide any basis for the validity of forcibly conducted anal examinations in the detection of consensual anal intercourse”.
This is supported by doctors on the ground. For example, according to Human Rights Watch, one doctor who conducted such tests in Uganda admitted that, "if it is a case involving consenting adults, you can’t tell much from examining them".
In short, one cannot reliably "test" for whether someone has had anal intercourse through an anal exam. Reasons include the normal variability between people’s bodies and the lack of clear guidelines. In addition, "decreased anal sphincter pressure", which is what such exams are looking for, can be caused by a wide range of conditions from chronic constipation and irritable bowel syndrome to Parkinson’s disease.
One can thus imagine a situation where a man is accused by a jealous neighbour of homosexuality. The man suffers from chronic constipation. He is arrested by the police, bullied into consenting to an anal exam, is violated by a doctor, and is found to have decreased anal sphincter pressure. At the moment, this forced penetration can be used as evidence to "prove" that the man has committed a crime according to Kenyan law.
Gabrielle Lynch an associate professor of comparative politics at the University of Warwick in the UK; [email protected]; @GabrielleLynch6.