Last edited: August 10, 2004
The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"The lawmaker who penalized the act in that wording
and the judge who is to find guilty of its commission or is to charge the
jury on its commission, have read the Holy Scriptures, the Genesis, the
Deuteronomy; they know about Sodom, the ancient city of Palestine and its
devious sexual practices; they have read Saint Paul, Epistle to the Romans
and Saint ThomasThe Summa Theologicawhich deal with the
The Victorian Morality Period, 1873-1948
Puerto Rico was obtained by the United States after the Spanish-American
War of 1898. The Organic Act of 19001 specified
that all laws of Spain would remain in force in Puerto Rico unless and until
Puerto Rico enacted its own criminal code in 19023
that abrogated common-law crimes4 and outlawed
sodomy with the common-law definition and a penalty of "not less than
five years."5 This conceivably allowed life
In 1926, in the first reported sodomy case, People v. Diaz,6
the Puerto Rico Supreme Court ruled 4-1 that sodomy could be accomplished
between people of the opposite sex.7
The sodomy law was changed in 19438 to
establish a penalty of 1-10 years, but the common-law definition was retained.9
In a 1944 case, People v. Castro,10
the Puerto Rico Supreme Court rejected the effort of the defendant to have his
penalty for sodomy reduced because he had engaged in sodomy with two boys
while intoxicated. The Court also rejected Castros contention that, because
the 1943 law was passed shortly after his sentencing, he should be entitled to
a lesser sentence.11 Justice Angel DeJesus,
writing for the Court, concluded that the man
who abuses the innocence and weakness of a child, and uses him to
satisfy his animal instincts, deserves no pity since he had none for the
ignorant and defenseless child.12
In 1937, Puerto Rico enacted a sterilization law13
that turned out to be the last one ever enacted in the United States. The
statute permitted sterilization of any "sexual pervert" in "any
institution" supported by the Puerto Rican or any municipal government on
the request of the institution.14 In addition,
such "perverts" not residing in any such institution could be
sterilized on the petition of "the nearest relative, guardian, or
friend."15 Sterilization was to lead to
loss of reproductive capabilities, and expressly was forbidden to "depriv[e]
him of his sexual functions."16 This
latter provision is curious, since the typical "sexual pervert" did
not engage in sexual activity that would lead to reproduction.
There is no case law under this statute, nor any revision to it.
Period Summary: Once part of the United States, Puerto Rico
adapted quickly to English law, passing a sodomy law with the English
common-law definition. The sparse case law during this era was limited to
a rejection of heterosexual immunity as well as an intoxication defense.
Puerto Rico also authored the last sterilization law to be enacted in the
United States, and it included "perverts," something laws
enacted in the 1930s otherwise did not.
The Kinsey Period, 1948-1986
In 1950, the Puerto Rico Supreme Court decided, in People v. Gutierrez,17
that emission was not required to complete the crime.18
The opinion was very short because the Court felt that "[g]iven the crime
involved we do not deem it advisable to summarize the evidence
In People v. Santiago Vasquez,20
decided in 1967, the Puerto Rico Supreme Court rejected a constitutional
challenge to the sodomy law as being too vague to give due process.21
Justice Carlos Santana Becerra explained why a more detailed law was not
lawmaker who penalized the act in that wording and the judge who is to
find guilty of its commission or is to charge the jury on its commission,
have read the Holy Scriptures, the Genesis, the Deuteronomy; they know
about Sodom, the ancient city of Palestine and its devious sexual
practices; they have read Saint Paul, Epistle to the Romans and Saint
ThomasThe Summa Theologicawhich deal with the matter. They
have knowledge of the ancient legislation, the Roman, the Gothic, the Fueros,
Las Siete Partidas by Alfonso the LearnedLaw I, Seventh Partidathey
have knowledge of history and the sciences and they are intellectually
cultivated persons who know what sodomy is and its practices against
nature, and the meaning of this concept in the penal statute.22
The Supreme Court decided People v. Ortiz Vasquez23
in 1969. The case involved a medical resident who sexually assaulted a
15-year-old male who was a patient in a hospital. The Court upheld the right
of the trial court to refuse to order a sanity examination for a witness,
barring evidence that the witness actually might be insane.24
Although Gay activists were confident of the repeal of the sodomy law when
the Puerto Rico legislature considered a comprehensive criminal code revision
in 1974, since the committee proposing the new code made that recommendation,25
what actually got enacted26 left Puerto Rico in
a unique situation. A definition of sodomy still was not created, but the
wording was changed so that "sexual intercourse" became a crime only
between people of the same sex, whereas "the crime against nature"
was criminal with any human being. The 1-10 year sentence was retained.27
Another section prohibited the maintenance of houses of "prostitution or
sodomy."28 Also in the new criminal code
was a broadly worded solicitation law. Everyone
who in a public place or a place open to the public makes obscene
propositions, in a scandalous manner as is offensive to public decency,
shall be punishable by imprisonment for a term not more than six months,
or a fine not more than two hundred and fifty dollars.29
A third provision in the new code was that dealing with prostitution.30
This section set a misdemeanor penalty for anyone engaging in "sexual
relations with another person for money or a fee, remuneration or any form of
payment[.]"31 The "sex of the
parties" was no defense, clearly recognizing same-sex prostitution.32
Arguably, one could avoid the felony penalties for sodomy in Puerto Rico by
accepting money for the act, thus reducing the penalty automatically to a
Follow-up information on the new code was that the legislature intended to
repeal the sodomy law, but "public outcry" was sufficient to make
them change their minds. Gay activists then mounted a campaign to have the
Governor of Puerto Rico veto the code, but he refused to veto the entire code
just to stop the sodomy law.33
A last-ditch effort to block the new code from taking effect was a court
suit seeking an injunction against it. Two Gay male couples brought the suit,
but the court refused to grant the injunction because there was no "real
or immediate" threat of prosecution of the plaintiffs.34
In 1979, the sodomy law was revised to protect people against force.35
The preamble noted that in Puerto Rico, "sexual intercourse between
persons of the same sex, be it men or women, is penalized[.]"36
In 1980, a law was enacted37 to deal with
habitual criminals. Any person convicted three or more times of a felony,
which would include consensual sodomy, "is presumed to show a persistent
tendency to break the law" and could be sentenced to a fixed term
anywhere from 20 to 99 years.38 The sodomy law
also was adjusted. Keeping the same strange language from the 1974 code, the
penalty was changed to a fixed term of six years, but, with undefined
"extenuating circumstances," the Courts could reduce the penalty to
four years, and with equally undefined "aggravating circumstances,"
the penalty could be increased to 10 years.39
Another revision in 198340 raised the
penalty to a fixed term of 10 years, and raised from 10 to 12 years the term
which a person could receive if accompanied by still undefined
"aggravating" circumstances, and raised from four to six years the
penalty if accompanied by equally still undefined "extenuating
circumstances."41 Oddly, the preamble to
this law spoke of the "harm inflicted on the victim and on society"
of many crimes42 and pointed out that the
Police Superintendent reported that
the crimes most frequently committed in Puerto Rico were murder,
manslaughter, rape, robbery, aggravated assault, crimes against property,
burglaries, and unlawful appropriation. This act has the purpose of
increasing the penalties for some of these crimes in order to adjust them
to the Puerto Rican reality, and to fight the incidence of crime.43
Sodomy was not listed as one of the most common crimes in Puerto Rico, but
the penalties for it still were raised. Also, the legislature raised the
penalty only for "some" of the most commonly reported crimes.
The sterilization law was repealed in 1960.44
Period Summary: Puerto Rico showed almost no support for the
Kinsey reports or the Model Penal Code, with a retention of felony
penalties for consensual sodomy in its 1974 criminal code revision. Court
opinions consistently upheld sodomy convictions, with one as late as 1967
appealing to religious authority. No same-sex sodomy cases were reported
in Puerto Rico during the second half of this era. The sterilization law
was repealed in 1960, only the second such law to be repealed.
The Post-Hardwick Period, 1986-Present
A proposal to repeal the sodomy law was introduced into the Puerto Rico
Senate in early 1992. It was opposed by conservative religious leaders.45
Period Summary: Unlike elsewhere, if reported cases are to
be used as a gauge, in Puerto Rico sodomy is pretty much a
heterosexual crime. No same-sex sodomy case has been reported since
1969, although numerous heterosexual cases have.
1 31 Stat. 76, enacted Apr. 12, 1900.
2 Id. at 79, §8.
3 Revised Statutes and Codes of Porto
Rico, [sic] (San Juan:Boletin Mercantil Press, 1902???), "Penal
Code," enacted Mar. 1, 1902.
4 Id. §5.
5 Id. at 537, §278.
6 35 P.R.R. 212, decided Mar. 26, 1926.
7 Id. at 213-214.
8 Laws of Puerto Rico 1943, page
106, Act 42, enacted May 4, 1943.
10 63 P.R.R. 454, decided Apr. 26, 1944.
11 Id. at 456.
12 Id. at 458.
13 Laws of Puerto Rico 1937, page
267, Act 116, enacted May 13, 1937, effective Aug. 11, 1937.
14 Id. at 268, §3.
15 Id. §4.
16 Id. §5.
17 71 P.R.R. 787, decided Nov. 15, 1950.
18 Id. at 788.
20 95 P.R.R. 581, decided Dec. 14, 1967.
21 Id. at 583-584.
22 Id. at 584-585.
23 98 P.R.R. 165, decided Dec. 30, 1969.
24 Id. at 170.
25 The Advocate, Vol. 133
(Mar. 13, 1974), page 9.
26 Laws of Puerto Rico 1974, Act
115, enacted July 22, 1974.
27 Id. §103.
28 Id. §108.
29 Id. §107. Currently codified
30 Id. §107-A. Currently codified
31 Id. (a).
32 Id. (b).
33 The Advocate, Vol. 150
(Nov. 6, 1974), page 12.
34 The Advocate, Vol. 155
(Jan. 15, 1975), page 6; Vol. 162 (Apr. 23, 1975), page 12;
Vol. 163 (May 7, 1975), page 14.
35 Laws of Puerto Rico 1979, page
115, Act 55, enacted May 30, 1979.
36 Id. at 116.
37 Laws of Puerto Rico 1980, page
279, Act 101, enacted June 4, 1980.
38 Id. at 285, ch. II.
39 Id. at 292, article 103.
40 Laws of Puerto Rico 1983, page
121, Act 57, enacted June 3, 1983.
42 Id. at 121.
43 Id. at 122.
44 Laws of Puerto Rico 1960, page
123, Act 69, enacted June 8, 1960, effective immediately.
45 Washington Blade, Apr. 10,
1992, page 33.
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