BEIRUT: A recent decision by a district court of appeal in Mount Lebanon has breathed new life into gay rights activists’ quest for equality after it found that consensual sex between people of the same gender is not unlawful.
The ruling by the three-judge bench came in line with four similar judgments from lower courts between 2009 and 2017, which declined to convict gay and transgender of “sexual intercourse contrary to nature.”
“What makes this acquittal different is the fact that it is the first from an appeals court,” Georges Boustany, an associate at Tyan & Zgheib Law Firm, told Annahar.
The case made its way to the appeals court after prosecutors challenged the first-degree court judge’s decision after he declined to convict a group of nine people suspected by police of being gay and transgender.
In 2015, residents of Sed El Bouchriye filed a complaint with the municipality against the group that was gathered in the Beirut suburb. The complaint was referred to the Internal Security Forces who apprehended the suspects.
Prosecutors then filed their charges based on Article 534 of the Lebanese Penal Code, which states that “any sexual intercourse contrary to the order of nature is punishable by up to one year in prison.
Rabih Maalouf, the first-degree judge presiding over the case, questioned the interpretation of the law before ruling that “homosexuals have a right to human and intimate relationships with whoever they want, without any interference or discrimination in terms of their sexual inclinations, as it is the case with other people”.
This ruling is significant, says Boustany, because it could act as a precedent in future cases against LGBTQ people, even though the government might appeal to the Court of Cassation, the country’s highest judicial authority.
Article 534 of the penal code has been disproportionately used to prosecute LGBTQ people, due to its vague wording of “contrary to the order of nature,” which is open to interpretation.
Yet Maalouf had referred in his ruling to a penal code provision protecting freedom of expression, Article 183, which states that “an act undertaken in the exercise of a right without abuse shall not be regarded as an offense.”
The progressive ruling could signal the end of criminalizing homosexuality, explained Boustany, who is wary still of the road ahead.
To build on this positive step, Boustany says that an extensive advocacy campaign should be initiated with members of Parliament to either amend or repeal article 534.
Failing to do so would permit any “judge to convict the LGBTQ, prosecutors to file charges against them, or members of the ISF to even arrest people suspected of being LGBTQ” he says.
In May, authorities arrested Hadi Damien, the chief organizer of Lebanon's gay pride week before the Canadian embassy issued a statement condemning the crackdown.
Canada, that's been at the forefront of the fight for equality, said that "everyone deserves to live free of stigma, persecution, and discrimination – no matter who they are or whom they love."
Boustany is also calling for a lobbying campaign directed at other judges, requesting them to refrain from convicting individuals based on Article 534 until it's amended, and on prosecutors to abandon using the decades-old legislation to bring charges against the LGBTQ community.
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