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ORAM Responds to Czech Criticism of Phallometric Testing Report

NEW REPORT PUBLISHED – CZECH RESPONSE TO CRITICISM OF USE OF PHALLOMETRIC TESTING “NOT GOOD ENOUGH” SAYS LEADING REFUGEE AGENCY.

Melanie Nathan – Dec 15-2010- San Francisco,   CA -New report by leading LGBTI refugee agency ORAM (Organization for Refuge, Asylum and Migration) exposes flawed and abusive practice of ‘phallometry’ – the physical testing of sexual orientation on individuals seeking asylum.  ORAM – the Organization for Refuge, Asylum and Migration – Wednesday, published a groundbreaking report on the practice of phallometry – a procedure used on asylum seekers in the Czech Republic in an attempt to determine whether they are homosexual.

The Czech Republic has come under fire for the odd approach it takes to proving whether gay refugees coming into the country are telling the truth about their sexuality. The Czech government utilizes phallometric testing, in which male refugees who claim to be gay are hooked up to a device which tracks blood flow to the penis. The men are then made to watch heterosexual pornography. If the device determines that the man becomes sufficiently aroused while watching heterosexual pornography, the Czech government denies him asylum.

The Czech Republic last week responded to criticism of its use, but stated it will continue making the procedure available to those who request it.  Critics fear that in fact, those who decline to request the test will continue to be denied refugee protection, and that desperate asylum seekers will “opt” for the procedure in the attempt to avoid being deported to countries where they fear persecution.

Currently 76 countries worldwide criminalize consensual same-sex relations.  Of these, 8 apply the death penalty. Hundreds of judicial and extra-judicial killings of gay men and lesbians have been reported worldwide, most notably in Iraq and Iran.  Non-state persecution of sexual minorities is common in many places in the world.

Penile phallometry, also called “penile plethysmography,” is an attempt to scientifically quantify male sexual arousal by measuring physiological responses to visual stimuli – generally pornographic material – through attachment of electrodes to the penis.  In the Czech Republic, men who request asylum based on being gay have been subjected to this test to verify their claim.  Applicants who refused to undergo the procedure have been subject to denial of refugee protection.

The ORAM report is an exhaustive legal and scientific analysis of phallometry and its effectiveness.   The report finds that it is scientifically unreliable, resulting in its rejection as evidence in both United States and Canadian courts.   It also finds that phallometry is unacceptably invasive and contravenes Article 3 of the European Convention on Human Rights – the right to be free from inhuman or degrading treatment.

Neil Grungras, Executive Director of ORAM said: “Phallometry is an outdated practice based on deeply prejudicial and simplistic beliefs.  In addition to being unreliable, the test is invasive and humiliating.  There is incontrovertible scientific evidence that people do not respond uniformly to the kinds of stimulation provided in phallometry.  And from our work with our clients, we know that refugees are often so traumatized from the experiences that caused them to flee and seek asylum in the first place that they are unlikely to react in a ‘predictable’ way to any kind of testing.  This is all the more so because so many gay, lesbian, bisexual, transgender and intersex refugees have been sexually abused throughout their lives.

“The practice of phallometry must stop immediately.  It is not good enough for Czech government to simply say it will end its compulsory use but will let it remain available.  Asylum seekers are extremely vulnerable and desperate, and may feel obliged to request this degrading exam it in order to prove their claim. Only applicants who claim to be gay are targeted for this physically invasive examination.  Other asylum applicants in the Czech Republic are simply interviewed to ascertain the veracity of their claims.  Our report has demonstrated that phallometry is completely unreliable.   There is no point in having it available at all.

“Sophisticated procedures, including sensitive interviewing techniques and training for interviewers, need to be developed and implemented as soon as possible to ensure that those who need protection from persecution based on their sexual orientation are able to access safety without fear of abuse and humiliation by those charged with protecting them.”

Key findings of the report include:

• Legal, psychiatric, and medical studies have shown plethysmography (phallometry) to be unreliable, citing inconsistent results that arise from uncontrolled variables in the application of the method. These uncontrolled variables include the ability of subjects to willfully generate physical responses to the visual stimuli presented in testing and the lack of standardization for images used as visual stimuli that fail to account for cultural differences among testing subjects.
• An erroneous plethysmographic test can lead rejection of a valid asylum claim and the refoulement (deportation or expulsion) of a bona fide LGBTI refugee to his or her country of origin, resulting in further persecution and sometimes in execution.
• The requirement of submission to plethysmography fundamentally interferes with not just with an individual’s right to asylum, but also his or her right to privacy and rights to be protected from medical abuses and inhuman or degrading treatment.
• At least two EU member states—the Czech Republic and Slovakia—are reported to have implemented plethysmography as part of their refugee status determination proceedings for gay asylum-seekers. The Czech Republic has announced it will no longer make the test compulsory but will continue to have it available should an asylum seeker wish to take it.
• A German court granted expedited rights protection to an Iranian gay asylum seeker whose application for asylum the Czech Republic had terminated when the applicant refused to submit to plethysmographic testing. The court found that the Czech Republic’s use of plethysmography failed to conform to the human rights protection due the applicant, including the right to seek asylum and the right to be free from cruel, inhuman, and degrading treatment under Article 3 of the European Convention on Human Rights.
• Those countries that practice plethysmography to determine sexual orientation in asylum claims adjudication must immediately desist from its use, and should re-open and re-examine refugee claims that were denied because of either the results of plethysmographic testing or the refusal by applicants to submit to the testing.
• Sophisticated procedures and guidelines are urgently needed to help asylum decision-makers accurately evaluate the credibility of individuals claiming to be gay, lesbian or bisexual. Resources must be allocated to the development and application of humane and reliable questioning and interviewing techniques, and to the thorough training of adjudicators in these techniques.

ORAM – the Organization for Refugee Asylum and Migration is a US-based non-profit dedicated to helping asylum seekers and refugees worldwide who have been forced to flee their home countries due to persecution based on their sexual orientation, gender or gender identity.  It is based in the United States of America but has projects in the UK, Turkey and the Middle East.   It is a leading source of expertise on LGBTI refugee issues.

Posted by Melanie Nathan -
nathan@privatecourts.com