Commercial Speech, Gender Expression
Vazzo v. City of Tampa
Closed Mixed Outcome
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The Misdemeanor Court of Appeals in Beirut dismissed charges against three men for allegedly engaging in homosexual relations in violation of Article 534 of the Penal code. The first defendant X, was a university student from Syria who was arrested based on unsubstantiated evidence from an unnamed source and was tortured while in custody to force a confession. The other two defendants were men he had texted with but never met, whose identities were discovered when the police unlawfully searched X’s mobile phone. The Court found that as the men were not caught in “the act” of any unlawful behavior, there was no actus reus on which to convict. In a concurring opinion, Maalouf J further found the charges should be dropped as X’s mobile phone was searched without a warrant, his right to the confidentiality of correspondence was violated, the investigation was marred by irregularities, and the alleged “evidence” was inadmissible as it was collected under duress and means of torture. Regarding the charges related to homosexuality, he declared that preventing people from enjoying their inherent personality rights constituted a violation of the fundamental Right to Privacy as enshrined under Article 12 of the Universal Declaration of Human Rights and the Lebanese constitution.
The Plaintiff X (name withheld to protect his identity), was a young Syrian refugee attending University in Lebanon. On February 20, 2015, at the request of the General Directorate of Public Security, he went to their offices to receive his renewed student permit. Upon arrival, he was arrested on suspicion of homosexuality based on information from an unidentified source and was not released until 9 days later. An investigation was opened without prior permission from the Public Prosecutor.
While in custody, he alleges he was beaten to extract a confession that he was gay. He attested that he was subjected to “excessive beatings, electrical shocks, slaps, punches, kicks in the hands, legs and all over his body, threats of rape and anal examinations, a compulsory AIDS test (negative result), as well as insults and degrading treatment throughout his detention.” He was referred after to the “Office for the Protection of Morality” for another investigation by the Public Prosecutor using the same alleged methods, which was documented by an official doctor’s report. He was eventually released after receiving his residency papers.
He was also forced to open his mobile phone for inspection by the police. Subsequently, two young Lebanese men who had contacted him via text through the dating app Grinder, were subpoenaed for questioning. They were also interrogated about their private lives and their sexual orientation, but not assaulted, and were released a few days later.
The Public Prosecutor’s Office pressed charges based on the investigation claiming that the three young men committed the act of “unnatural sexual intercourse” under Article 534 of the Penal Code.
After the Court of First Instance convicted the defendants, they appealed the decision before the Misdemeanor Court of Appeals in Beirut.
Court of First Instance (The Individual Penal Judge in Beirut)
The Individual Penal Judge in Beirut, competent for infractions and misdemeanors, heard the trial of the three defendants based on the charges of “unnatural sexual intercourse” and delivered a judgment on 2 May 2017.
Defendant X demanded the suspension of the trial on the grounds that any evidence against him was based on a forced confession resulting from torture. He requested that the judge hear his testimony regarding his treatment while in police custody. He relied on Article 73 of the Code of the Criminal Procedures that allows a defendant to submit a procedural motion based on the nullity of the investigation procedures. The judge rejected X’s request without giving reasons despite the law obligating him to do so.
The defendants challenged the course of the trial and demanded that the case be dismissed and be heard before another court. The Judge rejected these requests and instead relied on the evidence from the police investigation which the defendants claimed was forced and based on circumstantial evidence illegally procured from X’s mobile phone.
The judge also imposed a fine of 300,000 L.L ($200 USD at the time) for the misuse of the right to litigate.
The Individual Penal Judge in Beirut convicted the three defendants for having “unnatural sexual intercourse” under Article 534 of the Penal code. They were sentenced to one year in prison and fined 500,000 L.L ($333 USD equivalent at the time).
The Misdemeanor Court of Appeals in Beirut delivered the judgment.
The main issue before the Court was to determine if the defendants had violated Art. 534 of the Penal Code and if the First Instance Court had applied the law correctly.
Article 534 of the Lebanese Penal Code states: “Any sexual intercourse against the laws of nature is punishable with imprisonment for a period of one month to one year, as well as a penalty ranging from 200 thousand Lebanese Pounds to one million Lebanese Pounds”.
The Court first considered that defendant X, was arrested based only on unsubstantiated allegations from the Anti-Human Trafficking and Protection of Morality office. The Court observed that the men were not caught in “the act” of any unlawful behavior, and moreover it would be impossible for X to engage in such acts with the two men he had never met personally, but only corresponded with. One of the Lebanese defendants denied ever having had sexual relations with men. The Court found that it could not convict based merely on sentiment or sexual orientation, but that there would have to be some evidence of harm, or witness testimony that they had engaged in an unlawful act.
As there was no evidence of a crime, the Court did not move forward with claims based on the investigation or allegations by X that he had been tortured while in custody.
The Court upheld the appeal on the ground that there was an absence any actus reus, or any witness to or evidence of the alleged offence of same-sex intercourse. Hence, the Court dismissed the charges.
Justice Rabih Maalouf, concurred in part and dissented in part.
Maalouf J supported the Court’s decision to drop the charges against the applicants under Article 534 of the Penal Code. However, he took issue with the legal basis for the Court’s decision.
According to Maalouf J, the charges should be also dropped as X’s mobile phone was searched without a warrant. According to Article 2 of the Law | No. 140 dated 10/27/1999 on safeguarding the right to the confidentiality of correspondence through any means of communication, only the judge in charge of the investigation has the right to reveal the confidentiality of correspondence in cases of extreme necessity during criminal prosecutions, and the decision must be justified and in writing.
He further found that the evidence presented by the Anti-Trafficking office was inadmissible as it was collected under duress and means of torture, and the investigations were marred by major irregularities, which follows the rule that what is built on falsehood, is false.
Regarding the charges related to homosexuality, he declared that preventing people from enjoying their inherent personality rights constituted a violation of the fundamental Right to Privacy as enshrined under Article 12 of the Universal Declaration of Human Rights and the Lebanese constitution.
He referred to Article 183 of the Penal Code which protects freedom of expression and states that “[a]n act undertaken in exercise of a right without abuse shall not be regarded as an offense” to argue that same-sex relations are a protected right insofar as they do not cause harm. Relying on a previous judgment he authored, case 15/2017 from Metn Court (26/01/2017), he maintained that same-sex relations constitute the exercise of a fundamental rights, and 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.” In his analysis of the “right”, he considered the principle of equality between human beings is one of the most important pillars of a democratic society, on the basis of which everyone has the right to enjoy all rights and freedoms, even if homosexuality is rejected by a segment of society. He further cited that ruling to note that the World Health Organization refuted that homosexuality was a disorder or disease. Maalouf J concluded that to deny homosexuals their natural rights would compel “them to what is contrary to their nature, in order conform with the majority, and thus prevent them from enjoying and violating their inalienable personal rights, which constitutes a violation of the most basic human rights enshrined in the Lebanese constitution and the laws of universal human rights”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome because although the court dismissed the charges, the Majority neither nullified the prior investigations nor adopted the opinion of Judge Maalouf.
The minority opinion of Maalouf J, however, expanded expression. First the he declared that consensual sexual relations between adults in private is an inviable aspect of private life. According to Judge Maalouf the right of individuals engage in private sexual relations, can only be restricted if there is evidence of harm as stipulated in Article 183 of the Penal Code that states “[a]n act undertaken in exercise of a right without abuse shall not be regarded as an offense.” In this opinion and his previous opinion from the Metn Court 15/2017, he attempted to draw a clear line between private life and public life, where courts may interfere only in instances of sexual relations in public places, non-consensual sexual relations or relations involving minors.
This ruling marks a progressive turn from a previous case adjudicated before the Felony Court in Beirut (June 2016) and the Court of Cassation (October 2016) which convicted a Lebanese young man who claimed he was gay and had had same-sex relations, without evidence of him engaging in any specific act.
This ruling may bring Lebanon one step close to abolishing Article 534 of the Lebanese Penal Code
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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