Case Puts Focus on Gay Rights
Puerto Rico: Support Sodomy Law Repeal, Rape Law Reform
Emergency Response Network The International Gay and Lesbian Human Rights
Commission (IGLHRC), April 30, 2002
@@@@@@@ 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, as well as for a more accurate definition of
@@@@@@@@ ACTION @@@@@@@
IGLHRC and local organizations ask for letters in support of those
amendments. Please write TODAY to:
Hon. Eudaldo Baez-Galib
Presidente de la Comisión Jurídica
(President of Legal Commission)
Apartado 9023431, San Juan, PR 00902-3431.
Phones: (1) 787-724-2030 extensions 2493 to 2495 or (1) 787-722-1856.
And please send copies to:
Fundación de Derechos Humanos
Movimiento Ecuménico Nacional de Puerto Rico
@@@@@@@ SAMPLE LETTER @@@@@@@
Dear Mr. Baez Galib,
We write to you in support of the following amendments to the Puerto Rican
Penal Code submitted by non-governmental organizations like Fundacion de
Derechos Humanos and Movimiento Ecumenico Nacional de Puerto Rico:
- To eliminate all references to gender and sexual organs involved in
Articles 99 and 100 (rape);
- To eliminate altogether Article 103 (penalizing same-sex sexual
In the first case, Articles 99 and 100 define rape as an act that con be
committed only against women, and only by penile-vaginal penetration. As the
practice and theory of sexual rights evolves, it becomes evident that what
constitutes a rape is the element of unwillingness on the part of the victim:
to be forced (by any means) to indulge in any kind of sexual activity is rape.
Non-governmental organizations working with women, children, sexual minorities
and prisoners—among other groups—can sadly testify that boys, transgender
people and men are victims of rape in different circumstances. And sexologists
will tell you that sexual activity, consensual and forced, among human beings
involves much more than penises and vaginas: human beings are capable of
sexualizing any part of their bodies as well as any instrument that they
fancy, with the potential not only to express love and pleasure, but also,
unfortunately, to inflict pain upon others. Rape is a very serious human
rights violation; its definitions need to be inclusive of all its
possibilities, to ensure justice and protection for all its possible victims.
In the second case, Article 103 of the current Penal Code penalizes
"sexual relationships between people of the same sex", without
reference to their being consensual or not. In the last 15 years, several
countries around the world (from Ireland to Ecuador, from Australia to South
Africa) have repealed similar legislation, recognizing that consensual sexual
activity between adults of the same sex is a private affair that does not need
to concern the State. In 1994, the United Nations Human Rights Committee in
the case of Toonen vs. Tasmania stated that the existence of sodomy laws in
that state "interfered with the plaintiff’s privacy", and that the
references to "sex" in anti-discriminatory provisions included in
the International Covenant on Civil and Political Rights (Articles 2.1 and 26)
should be read as inclusive of "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 on the basis of sex.
We urge you to amend Articles 99 and 103 in such a way that allows you to
make a compelling statement in favor of equality and dignity for all. The
Puerto Rican Senate has the historic opportunity to get rid 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.
@@@@ BACKGROUND INFORMATION @@@@
Article 103 of the Puerto Rico Penal Code penalizes "sexual
relationships between people of the same sex or committing acts against nature
with a human being" with 10 years in prison. The text came from the
California Penal Code, which served as a model for the original Puerto Rico
Code in 1902. 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. Sexual relationships
between people of the same sex were considered a separate "crime"
from that of bestiality, and punishment increased to a mandatory 10 year term.
In 1992, proposals were submitted for 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 hada personal agenda in delivering her confession.
On February 1999, three homosexual couples (Ms. Sanchez and her partner,
Mr. Jose Joaquin Mulinelli Rodriguez and his partner, 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.
@@@@@@ IN THE LAW @@@@@@
The Puerto Rican Constitution protects against 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).
Unfortunately, Puerto Rico has a colonial relationship to the United
States, and the latter has ratified very few of the widely-accepted
international human rights instruments, and has failed to ratify the
Interamerican Human Rights Convention. The United States has ratified the
International Covenant on Civil and Political Rights (ICCPR). As noted above,
the United Nations Human Rights Committee, in the case of Toonen vs. Tasmania
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 in Puerto
Rico violate obligations under the ICCPR.
It is also worthy to mention that the United States, regretfully, 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.
The Universal Declaration on Human Rights is considered binding by all
states that are UN members (as the United States is). And the UDHR does
protect the right to be free from discrimination and the right to equality
before the law (Articles 1, 2 and 7), and the right to privacy (Article 12)
@@@@@@@@ ABOUT IGLHRC @@@@@@@@
@@@ ABOUT US:
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 statement, gender identity or statement, 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.
1360 Mission Street, Suite 200
San Francisco, CA 94103
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