73. However, paragraph 30(c), as currently formulated, restricts protection against refoulement to cases of violence where the State authorities failed to intervene, which is too narrow a scope for that protection, not least in view of the clear obligation on States parties to exercise due diligence to prevent, stop and punish such violence, as acknowledged by the Committee.113 Recommended textual change: Whether, in the State of origin or in the State of deportation, the person has been or would be the victim of abuse or violence including gender based violence/ sexual violence, in public or in private, or gendered-based persecution, whether committed by State actors or by private persons genital mutilation, amounting to torture without the intervention of the competent authorities of the State concerned for the protection of the victim, when the State fails to exercise due diligence to prevent, investigate, prosecute, punish or redress the harm caused by such private persons leading to a violation of the prohibition of torture and other ill-treatment; (3) Proposed new Paragraph 30 (d) 74. Paragraph 30 of the draft omits to mention the criminalization of same-sex conduct as an indication of a risk of torture or other ill-treatment. This is of particular concern, among other reasons, in light of the evidence that in certain countries where consensual same-sex relations are criminalized the authorities often use non-consensual anal examinations purportedly as a method of obtaining “evidence” of such relations. This practice amounts to torture or other ill-treatment. Therefore, in keeping with the Committee’s own jurisprudence, we recommend that the General Comment address explicitly the existence of laws criminalizing consensual same-sex sexual conduct as presumptively triggering States parties’ non-refoulement obligations under the Convention in respect of the involuntary transfer of those individuals whose real or perceived sexual orientation and/or gender identity would place them in conflict with the above-mentioned laws. We further urge the Committee to adopt the view that, in those circumstances, the burden is on State authorities wishing to transfer the concerned individuals to rebut that presumption by proving conclusively the absence of a real risk of violations of the Convention upon removal, and as well as that a State party’s non-refoulement obligations would be breached should it forcibly transfer people to a place where they would be forced to conceal their sexual orientation or gender identity upon removal. We would recommend addressing this issue in a sub-paragraph inserted in paragraph 30 of the General Comment. Recommended textual addition (Paragraph 30(d)) The existence of laws criminalizing consensual same-sex relations constitutes a presumption that nonrefoulement obligations under the Convention are engaged in respect of the involuntary transfer of individuals whose real or perceived sexual orientation and/or gender identity would place them in conflict with the said laws, including whenever the people concerned would be forced to conceal their sexual orientation or gender identity upon removal. In those circumstances, the burden shifts to the State party, requiring rebuttal of that presumption by proving conclusively the absence of a real risk of violations of the Convention upon transfer. [FOOTNOTE to add See, e.g., CAT, Uttam Mondal v. Sweden, Communication No. 338/2008, 7 July 2011, CAT/C/46/D/338/2008, “As for his sexual orientation, the State party acknowledged that homosexual acts are illegal under the Penal Code and 113 CAT, General Comment No. 2, UN Doc. CAT/C/GC/2, 24 Jan. 2008 para. 18. 32 AI Index: IOR 40/6040/2017