Puerto Rico: Support Sodomy Law Repeal
The
International Gay and Lesbian Human Rights Commission (IGLHRC),
April 23, 2003
Action Alert
SUMMARY
The Puerto Rican Senate is discussing amendments to its
Penal Code. Local activists are pushing for the repeal of Article 103, which
penalizes same-sex sexual relations. The damaging effect of such law was
recently made evident by the Supreme Court’s refusal to prosecute a domestic
violence case involving a same-sex couple. ACTION
IGLHRC and local organizations ask for letters supporting
the amendment. Please write TODAY to the following officials:
Hon. Eudaldo Báez Galib
Presidente (President—Law Commission)
Comisión de lo Jurídico
E-mail: baezgalib@microjuris.com
Fax: +787 724-2267
Hon. Rafael Irizarry Cruz
Vicepresidente (Vice-president Law Commission)
Comisión de lo Jurídico
E-mail: rafaelirizarry@oslgate.osl.clu.edu
Fax: +787 805-1515
Hon. Sixto Hernández Serrano
E-mail: sramirez@oslgate.osl.clu.edu
Fax: +787 725-9667
Hon. Kenneth McClintock Hernández
Portavoz de la Minoría (Minority spokeperson)
E-mail: mcclintock@excite.com
Fax: +787 722-2684
Hon. Fernando Martín
E-mail: fmartin@oslgate.osl.clu.edu
Fax: +787 722-4738
And please send copies to:
Movimiento Ecuménico Nacional de Puerto Rico
E-mail: menpri@fuerzahumana.org
SAMPLE LETTER
Dear Sir,
We write to you in support of the following amendment to
the Puerto Rican Penal Code submitted by non-governmental organizations
including Fundacion de Derechos Humanos and Movimiento Ecumenico Nacional de
Puerto Rico:
- To eliminate altogether Article 103 (criminalizing
same-sex sexual relationships).
Article 103 of the current Penal Code penalizes “sexual
relations between people of the same sex,” whether consensual or not. In
recent decades, many countries worldwide (from Ireland to Ecuador, from
Australia to South Africa, and including nearly all countries in Latin
America) have repealed similar legislation where it existed, recognizing that
consensual sexual activity between adults of the same-sex is no concern of the
criminal arm of the State. In 1994, the United Nations Human Rights Committee,
in the case of Toonen v Australia, found that the existence of sodomy laws in
that country “interfered with the plaintiff’s privacy,” and that the
references to “sex” in anti-discrimination provisions included in the
International Covenant on Civil and Political Rights (Articles 2.1 and 26)
should be read to include “sexual orientation”. According to the
Committee, the existence of sodomy laws was both a violation of the right to
privacy and the right to be free from discrimination.
We are aware of your concerns about preserving the
cultural roots of Puerto Rico. If Puerto Rico decriminalizes consensual sexual
acts between adults, it will follow the path of the vast majority of other
Latin American countries. Many never had such laws; nearly all who did have
repealed them in recent years. Moreover, two Latin American countries (Ecuador
and Mexico) have nation-wide protections against discrimination based on
sexual orientation. Indeed, it is North American and British-inspired penal
codes which have included the harshest penalties for same-sex sexual
relations: such penalties are—like the original language of the Puerto Rican
provision—a legacy of colonialism.
Latin American traditions include the respect for
fundamental rights and freedoms; Christian traditions include respect,
understanding, and love for human beings in their diversity. A number of
Christian denominations have embraced homosexual relationships, as well as
homosexual people as members and communicants. While we congratulate you for
your appreciation of these traditions, at the same time it is important to
stress that Puerto Rico remains a diverse and secular society. Church and
State are, as they should be, separated by law.
We urge you to support the amendment of Article 103 so as
to allow the Puerto Rican Senate to make a compelling statement in favor of
equality and dignity for all. The Puerto Rican Senate has a historic
opportunity to rid the Commonwealth of legislation that is not only outdated
but harmful, as these laws leave many unprotected in the face of serious human
rights violations while condemning others who commit no crime at all.
Sincerely,
[Your Name]
[Your Organization]
BACKGROUND INFORMATION
Article 103 of the Puerto Rico Penal Code penalizes
“sexual relationships between people of the same sex or [persons] committing
acts against nature with a human being” with 10 years in prison. The text is
a consequence of US colonization: it derives from the California Penal Code,
which served as a model for the original Puerto Rico Code which the US imposed
in 1902, shortly after acquiring its new Caribbean possessions. Originally it
penalized “acts against nature, committed with another human being or with a
beast” with 1 to 10 years of imprisonment. In 1974 the Penal Code was
reviewed: bestiality was newly treated as a separate “crime”, and the
punishment for same-sex relations was increased to a mandatory 10-year term.
In 1992, proposals were submitted for the elimination of Article 103, but
failed.
Activists have been struggling for years against Article
103. On November 4, 1997, Reverend Margarita Sanchez (from Movimiento
Ecumenico Nacional de Puerto Rico) turned herself into the Division of Sexual
Crimes of the Department of Justice, confessing to have committed the “crime
of sodomy the night before.” San Juan District Attorney Ramón Muñiz
Santiago declined to prosecute her. The District Attorney informed Ms. Sanchez
that lesbians are incapable of committing sodomy since they lack a “virile
member.” He added that he would not prosecute two homosexual men under this
statute because there would be no victim. On the same day, the Justice
Department issued a press release refusing to prosecute the case; it claimed
that Ms. Sanchez had a personal agenda in submitting her confession.
On February 1999, three homosexual couples (Ms. Sanchez
and her partner, Mr. Jose Joaquin Mulinelli Rodriguez and his partner, and Mr.
Edgar Danielsen Morales and Mr. William Moran Berberena), together with the
American Civil Liberties Union (ACLU), challenged the constitutionality of
Article 103 in Court. The case is still pending before the Puerto Rico High
Court.
The damaging effect of sodomy laws like Article 103 was
recently made evident when, on April 20, 2003, the Puerto Rico Supreme Court
set aside criminal charges against Leandro Ruiz Martínez for beating his
domestic partner, Juan J. del Valle, two years ago. It was the first
domestic-violence case the government prosecuted since it decided to apply the
law to same-sex couples.
The judges in the majority said the legislative intent
was to “strengthen the institution of the family,” defined as one of a
“sentimental and legal union between a man and a woman.” According to the
law, domestic violence in a sexual couple is not “family violence” and as
such should not be prosecuted, nor its victims protected.
Later on, the Government of Puerto Rico filed a motion
for a reconsideration of that ruling. The General Advocate’s Office objected
to the analysis of the court, and added that, “The Court’s use of
legislative intention as a tool to interpret this case is mistaken,” arguing
that if the legislative intention was to exclude people from the law it would
have said so.
In addition, the motion says that regardless of the
social value ascribed to the law there is an undisputable social reality of
thousands of Puerto Ricans who form same-sex couples and as such form a
consensual relationship under any reasonable definition. According to the
government`s interpretation of Law 54 it should include any victim of domestic
violence regardless of the person’s sex.
(References to Law 54 were taken from news reports,
“Court Overturns Puerto Rico Gay Rights Law”, by 365Gay.com Newscenter
Staff, April 21, 2003; and “Government Appeals Supreme Court Ruling”, by
Sandra Ivelisse Villerrael, Associated Press, April 28, 2003.)
IN THE LAW
The Puerto Rican Constitution bars discrimination based
on “race, color, sex, birth, origin or social status, political or religious
beliefs” (Article 2.1). It also upholds the right to privacy (Article 8).
Puerto Rico is a colony (called a “Commonwealth”) of
the United States; the latter has ratified only a limited number of
international human rights instruments, and has failed to ratify the
Inter-American Human Rights Convention. The United States has, however,
ratified the International Covenant on Civil and Political Rights (ICCPR). As
noted above, the United Nations Human Rights Committee, in the case of Toonen
v Australia in 1994, declared that the existence of sodomy laws violates the
rights to privacy and the right to freedom from discrimination on the basis of
sex. Thus, the existence of sodomy laws anywhere in the United States or its
subject territories violates State obligations under the ICCPR.
Regrettably, the United States has not ratified the First
Optional Protocol to the ICCPR, which allows the United Nations Human Rights
Committee to receive and consider individual complaints from individuals
alleging violations of the ICCPR within that State. Thus, individuals in the
United States or Puerto Rico are not allowed directly to bring complaints of
violations to the United Nations Human Rights Committee. However, the
Committee can still consider violations of basic human rights in the United
States and its possessions, in the context of responding to the regular State
party reports which the US is obliged to submit under its treaty obligations.
In 1995, the Committee strongly condemned the persistence of sodomy laws in
the US and its territories, stating, “The Committee is concerned at the
serious infringement of private life in some [US] states which classify as a
criminal offence sexual relations between adult consenting partners of the
same sex carried out in private, and the consequences thereof for their
enjoyment of other human rights without discrimination.” (Concluding
Observations of the Human Rights Committee : United States of America,
03/10/95, CCPR/C/79/Add.50; A/50/40, para. 287.)
The Universal Declaration on Human Rights is considered
binding on all States as part of customary international law. The UDHR affirms
the right to freedom from discrimination and the right to equality before the
law (Articles 1, 2,and 7), as well as the right to privacy (Article 12).
ABOUT IGLHRC
The mission of the International Gay and Lesbian Human
Rights Commission (IGLHRC) is to secure the full enjoyment of the human rights
of all people and communities subject to discrimination or abuse on the basis
of sexual orientation or _expression, gender identity or _expression, and/or
HIV status. A US-based non-profit, non-governmental organization (NGO), IGLHRC
effects this mission through advocacy, documentation, coalition building,
public education, and technical assistance.
IGLHRC
1375 Sutter Street, Suite 222
San Francisco, CA 94109
USA
Telephone: +1-415-561-0633
Fax: +1-415-561-0619
Email: iglhrc@iglhrc.org
http://www.iglhrc.org
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