Procedural Posture

The defendants, both male, were charged with having “unnatural sexual intercourse” under Article 534 of the Lebanese Penal Code.

Facts

On 29 February 2007, members of a police patrol found the defendants in a car that was parked by the side of the road and took them to the Al-Bitroun Police Station on the grounds that they had been engaged in homosexual intercourse. It was alleged that the men had been kissing. However, it was unclear whether either of the men was in a State of undress and whether any sexual intercourse had occurred. A box of condoms was reported to have been in the car when the police arrived.

Issue

Whether the alleged actions of the defendants constituted “sexual intercourse against nature” and were in violation of Article 534 of the Lebanese Penal Code.

Domestic Law

Lebanese Penal Code, Article 534 (providing that any sexual intercourse against nature will be punished with up to one year imprisonment).

Reasoning of the Court

Two streams of reasoning ran through the judgment of the Honourable Mounir Suleiman. The first related to prosecution’s failure to establish strong evidence in support of the charges. There was conjecture as to the circumstances in which the men had been found, including inconsistent witness testimony. The Court held that it was not clear whether any sexual intercourse had occurred. Furthermore, the presence of a box of condoms could not be considered conclusive evidence: condoms were neither prohibited material nor evidence of a prohibited act; indeed, having condoms was encouraged by public awareness campaigns on sexual health. On this basis, insufficient evidence existed to sustain the charges.

The second stream of reasoning related to the concept of “unnatural” sexual acts. In deliberating this point, the Judge noted the nebulous character of the notion of a “violation of nature”. What was considered “unnatural” was closely linked to “the mood of a society and its traditions”, in addition to the willingness of society to accept new or emerging “norms of nature”. The Court noted that:

Man is part of nature and one its elements and one its cells and no one can say that any act of his acts or behaviour is contradicting nature even if the act is criminal or offending simply because these are the rules of nature and if the sky is raining during summer time or if we have a hot weather during winter or if a tree is giving unusual fruits all these can be according to and with harmony to nature and are part of its rules themselves.

The Court ordered that the criminal investigation into the behaviour of the defendants cease.

In Re Article 534, Criminal Court of Al-Bitroun – Arabic (full text of judgment in Arabic, PDF)

In Re Article 534, Criminal Court of Al-Bitroun – English (full text of judgment in English, PDF)