Last edited: November 23, 2003


COMMONWEALTH OF PUERTO RICO
TRIBUNAL OF INITIAL JURISDICTION
SUPERIOR COURT OF SAN JUAN

MARGARITA SANCHEZ DE LEON,FULANA DE TAL;
JOSE JOAQUIN MULINELLI RODRIGUEZ; SUTANO MAS
CUAL; EDGARD DANIELSEN MORALES; WILLIAM
MORAN BERBERENA; AND THE AMERICAN CIVIL
LIBERTIES UNION ("ACLU"),

Civil Num.

Plaintiffs,

Concerning: Declaratory Judgment,
Permanent Injunction and Violation

v.

SECRETARY OF JUSTICE AND COMMONWEALTH OF
PUERTO RICO

Defendant.

C O M P L A I N T

TO THE HONORABLE COURT:

The plaintiffs appear through their legal representatives and respectfully present, allege and request as follows:

Introduction

1. The present action is initiated to request a declaratory judgment stating that Article 103 of the Penal Code of Puerto Rico, 33 L.P.R.A. 4065, is unconstitutional, as well as a permanent injunction prohibiting Article 103's application and invalidating said article. Article 103 provides in pertinent part:

Every person who has sexual intercourse with a person of his same sex or commits the crime against nature with a human being shall be punished by imprisonment for a fixed term of ten (10) years ....

This Article criminalizes certain intimate, consensual, noncommercial and private acts between adults of the same sex that are not criminalized when committed by persons of opposite sexes. Article 103 also exposes to criminal penalties every person who commits certain intimate, nonconsensual, noncommercial and private acts. Therefore, Article 103 violates the guarantees of equal protection of the laws of Article II, Section 7 of the Constitution of the Commonwealth of Puerto Rico and of the Fifth and/or Fourteenth Amendments of the Constitution of the United States. By its terms, Article 103 also violates the right to privacy of the plaintiffs, as well as their dignity, both guaranteed by Article II, Sections 1 and 8 of the Constitution of the Commonwealth of Puerto Rico, by the Constitution of the United States, and by Sections 1983 and 1988 of the Federal Civil Rights Law (42 U.S.C. 1093, 1988). In addition, because it is not clear what conduct Article 103 intends to prohibit and to what persons it applies, Article 103 is unconstitutionally vague in violation of the Constitutions of the Commonwealth of Puerto Rico and the United States.

The Parties

2. The plaintiffs MARGARITA SANCHEZ DE LEON and JANE DOE are adult women and citizens and residents of the Commonwealth of Puerto Rico who presently live in and sustain an intimate relationship together. These plaintiffs share intimate conduct of the type that Article 103 of the Penal Code of Puerto Rico prohibits, and they will continue to participate in this conduct in the future. These plaintiffs fear being arrested and criminally charged under Article 103, along with the multiple adverse consequences that can result from criminal prosecution.

3. The plaintiffs JOSE JOAQUIN MULINELLI and JOHN DOE are adult men and citizens and residents of the Commonwealth of Puerto Rico who presently live in and sustain an intimate relationship together. These plaintiffs share intimate conduct of the type that Article 103 of the Penal Code of Puerto Rico prohibits, and they will continue to participate in this conduct in the future. These plaintiffs fear being arrested and criminally charged under Article 103, along with the multiple adverse consequences that can result from criminal prosecution.

4. The plaintiffs EDGARD DANIELSEN MORALES and WILLIAM MORAN BERBERENA are adult men and citizens and residents of the Commonwealth of Puerto Rico who presently live in and sustain an intimate relationship together. These plaintiffs share intimate conduct of the type that Article 103 of the Penal Code of Puerto Rico prohibits, and they will continue to participate in this conduct in the future. These plaintiffs fear being arrested and criminally charged under Article 103, along with the multiple adverse consequences that can result from criminal processing.

5. Plaintiff the American Civil Liberties Union ("ACLU") is a nonprofit civic organization composed of thousands of members in the United States and Puerto Rico and is dedicated to the defense and expansion of civil rights.

6. By information and belief, some members of the ACLU in Puerto Rico presently participate in intimate conduct of the type that Article 103 of the Penal Code of Puerto Rico prohibits, and they will continue participating in this conduct in the future. These persons fear being arrested and criminally charged under Article 103, and they fear the multiple adverse consequences that could result from criminal prosecution.

7. The ACLU appears in the name of and on behalf of its members as identified in the previous paragraph. The ACLU also appears as a representative of the public interest of Puerto Rico, because Article 103 poses a threat to the civil rights of thousands of Puerto Ricans and residents of Puerto Rico as a result of its violation of the rights of privacy and equal protection of the laws and its unconstitutional vagueness. In this capacity, the ACLU invokes the doctrine of Salas Soler v. Srio. de Agricultura, 102 DPR 716 (1974) and its progeny, which establish its standing to represent the public interest in this action.

8. The defendant Honorable Jose Fuentes Agostini, Secretary of Justice for the Commonwealth of Puerto Rico, is named in his official capacity, as the highest ranking public official in this jurisdiction who is responsible for enforcing the Penal Code of Puerto Rico.

First Cause of Action

[Right to Privacy under the Constitution of the Commonwealth of Puerto Rico]

9. Plaintiff Reverend MARGARITA SANCHEZ DE LEON is a Christian minister in the Metropolitan Community Church of Christ The Healer in Santurce, Puerto Rico. She also maintains an intimate relationship of several years with co-plaintiff JANE DOE, with whom she lives and regularly shares intimate sexual relations of the type that is criminalized by Article 103.

10. Plaintiff SANCHEZ therefore has a well-founded fear of being charged and/or processed as a result of her sexual orientation and, in particular, as a result of her intimate sexual activity.

11. SANCHEZ's constitutional right to freedom of expression, protected by the Constitutions of the United States and the Commonwealth of Puerto Rico, has been burdened by Article 103. In October 1997, SANCHEZ testified before a committee of the House of Representatives of Puerto Rico about certain legislation that was being considered. Although many other persons testified regarding the legislation without incident, when SANCHEZ testified a legislator asked her for the record if she "had lesbian practices" and took part in sexual conduct in violation of Article 103. During this public hearing, a legislator threatened criminal prosecution under Article 103 to any lesbian or gay man as a result of their sexual orientation and private and intimate sexual relations.

12. Plaintiff MARGARITA SANCHEZ DE LEON has been the victim of a selective and discriminatory application of Article 103 against her, solely because she has engaged in an ongoing intimate lesbian relationship with her consensual partner.

13. In the face of this situation, JANE DOE, the consensual partner of SANCHEZ, also fears being pursued and/or criminally prosecuted under Article 103, and also fears suffering adverse effects in other parts of her personal and professional life, because Article 103 criminalizes her lifestyle. As a result, plaintiffs SANCHEZ and DOE have a well-founded fear of being victims of persecution and/or criminal prosecution under the provisions of Article 103.

14. As a result of the well-founded fear of JANE DOE of being singled out, harassed, persecuted and victimized as a form of reprisal under Article 103, she asks that she be allowed to appear under the preceding pseudonym, maintaining private her true name and identity.

15. Plaintiff JOSE JOAQUIN MULINELLI is a health professional employed by a nonprofit corporation. He maintains an intimate relationship of several years with co-plaintiff JOHN DOE, with whom he lives and regularly shares an intimate sexual relationship of the type that Article 103 prohibits.

16. As a result, plaintiffs MULINELLI and JOHN DOE have a well-founded fear of being victims of persecution and/or criminal prosecution under the terms of Article 103.

17. As a result of JOHN DOE's well-founded fear of being singled out, harassed, persecuted and victimized as a form of reprisal under Article 103, DOE asks that he be allowed to appear under this pseudonym, maintaining private his true name and identity.

18. Plaintiffs EDGARD DANIELSEN MORALES and WILLIAM MORAN BERBERENA are an education professional and a health professional, respectively. They maintain an intimate relationship of several years, in which they live together and regularly sustain intimate sexual relations of the type that Article 103 criminalizes.

19. As a result, plaintiffs DANIELSEN MORALES and MORAN BERBERENA have a well-founded fear of being the victims of persecution and/or criminal prosecution under the terms of Article 103.

20. Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nonprofit corporation with more than 275,000 member, including members who reside in the Commonwealth of Puerto Rico. Members of the ACLU participate in intimate sexual relations of the type that Article 103 prohibits.

21. As a result, members of the ACLU fear being arrested, prosecuted and criminally penalized under Article 103, given that they continue to participate in the conduct that Article 103 prohibits.

22. Upon information and belief, thousands of residents of Puerto Rico, young and old, married and single people regularly participate in consensual sexual conduct of the type prohibited by Article 103. All of these persons run the risk of being arrested, prosecuted and penalized under Article 103.

23. The ACLU appears in this action in the name of its members adversely affected by Article 103 and to represent the public interest in Puerto Rico, as defined by the jurisprudence of Salas Soler v. Srio. de Agricultura, 102 DPR 716 (1974) and its progeny.

24. Sections 1 and 8 of Article II of the Constitution of the Commonwealth of Puerto Rico guarantee, within the fundamental and broad right of privacy, a fundamental right of adults protected by the Constitution to enjoy intimate consensual sexual relations without the interference of the State.

25. The application of Article 103 against the adult plaintiffs, for participating in intimate, non-commercial and consensual conduct, violates their right to privacy as protected by the Constitution of the Commonwealth of Puerto Rico.

Second Cause of Action

[Equal Protection Under the Constitution of the Commonwealth of Puerto Rico]

26. All facts and allegations contained in paragraphs 1 through 25 of this complaint are repeated and made part of this section of the complaint.

27. Section 7 of Article II of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico prohibits unequal treatment of those who should be treated the same.

28. Article 103 of the Penal Code of Puerto Rico creates an unconstitutional classification based on gender by criminalizing certain intimate sexual conduct of a private, consensual, and noncommercial nature based solely on the gender of the persons who participate in such conduct. Article 103 also creates an unconstitutional classification based on sexual orientation that criminalizes intimate sexual conduct between two adults of the same sex, but does not criminalize the same conduct when engaged in by heterosexuals.

29. The State has no legitimate interest in the creation or defense of the classifications created by Article 103. Said Article, as such, violates the equal protection guarantee that protects plaintiffs.

30. The enforcement of Article 103, based on private, consensual and non- commercial sexual conduct between adults of the same sex, violates the equal protection guarantee.

Third Cause Of Action

[The Right To Due Process Under The Constitution of Puerto Rico]

31. The facts and allegations contained in paragraphs 1 through 30 are repeated and made a part of this section of the complaint.

32. Section 7 of Article II of the Constitution of Puerto Rico guarantees to all citizens of Puerto Rico the fundamental right to due process of the law. Due process of the law requires that every criminal statute be sufficiently clear to make it possible to understand what conduct is prohibited.

33. It is not clear what conduct Article 103 of the Penal Code of Puerto Rico is intended to prohibit. This article criminalizes "sexual intercourse" between persons of the same sex, as well as the "crime against nature" between any people. The terms "sexual intercourse" and "crime against nature" are vague and Article 103 does not define the acts prohibited.

34. There is no means by which the citizens of Puerto Rico can come to understand what conduct is prohibited by Article 103, and the plaintiffs in the present action do not understand the breadth of the conduct prohibited in this Article. As a result, Article 103 suffers from unconstitutional vagueness that violates due process.

Fourth Cause of Action

[Equal Protection under the U.S. Constitution and 42 USC 1983]

35. The facts and allegations contained in paragraphs 1 through 34 are repeated and made part of this section of the complaint.

36. The Fourteenth (14th) Amendment to the Constitution of the United States prohibits unequal treatment of persons who should be treated alike. The federal Civil Rights Law, 42 USC 1983, prohibits states and territories under federal jurisdiction from enacting statutes that violate this right.

37. Article 103 creates a classification based on gender, since it criminalizes certain private, non-commercial and consensual sexual conduct between adults, based only on the gender of the persons who participate in the conduct.

38. Article 103 also creates a classification based on sexual orientation, since it criminalizes certain intimate sexual conduct between consenting adults that are of the same sex, but does not criminalize the same conduct when engaged in by adults of opposite sexes.

39. No legitimate or sufficient government interest exists that is furthered by these classifications. As a result, Article 103 violates the equal protection guarantee of the Constitution of the United States.

40. The application of Article 103 to the plaintiffs for intimate, consensual, non- commercial sexual conduct violates the equal protection guarantee of the United States Constitution.

Fifth Cause of Action

[Right to Privacy under the U.S. Constitution]

41. The facts and allegations contained in paragraphs 1 through 40 of the complaint are repeated and made part of this section of the complaint.

42. The United States Constitution guarantees a fundamental right to participate in intimate and private sexual activity that are consensual and non-commercial. Article 103, by criminalizing private, consensual and noncommercial sexual intimacy between adults, violates the right to privacy guaranteed by the Constitution of the United States.

43. The application of Article 103 against adults who engage in intimate, consensual and noncommercial sexual relationships violates the right to privacy as guaranteed by the United States Constitution.

Sixth Cause of Action

[Due Process Under the U.S. Constitution and 42 USC 1983]

44. The facts and allegations contained in paragraphs 1 through 43 are repeated and made part of this section of the complaint.

45. The United States Constitution guarantees the fundamental right to due process of the law, which includes the right to clearly understand what conduct has been criminalized in the Penal Code of Puerto Rico. The federal Civil Rights Act, 42 USC 1983, prohibits states and territories under federal jurisdiction from enacting statutes that violate this right. It is not clear what conduct Article 103 of the Penal Code of Puerto Rico criminalizes. This Article criminalizes "sexual intercourse" between people of the same sex, as well as "the crime against nature" between any people. The terms "sexual intercourse" and "crime against nature" are vague and do not define the acts that Article 103 prohibits.

46. There is no means by which the citizens of Puerto Rico can understand what conduct is prohibited and the conduct that is not prohibited by Article 103. As a result, Article 103 suffers from unconstitutional vagueness in violation of due process of the law, as guaranteed by the United States Constitution.

[The Right To A Declaratory Judgment]

47. The facts and allegations contained in paragraphs 1 through 46 are repeated and made part of this section of the complaint

48. The plaintiffs ask the honorable Court for a declaration that Article 103 violates their rights, as well as the rights of other citizens in a similar situation, to privacy, due process, and equal protection under the Constitutions of Puerto Rico and the United States. The plaintiffs have the right to a declaratory judgment from this Court, because they have a well-founded fear of being arrested and prosecuted under said Article, and because they have suffered the loss of their civil rights.

49. At present, and in light of what has been presented in this complaint, there exists a live controversy between the plaintiffs and the defendant that requires resolution from this honorable Court.

Prayer

FOR ALL OF THESE REASONS it is requested that this honorable Court:

1. ISSUE a JUDGMENT declaring that Article 103 violates the rights of the plaintiffs to privacy, due process, and equal protection of the laws, under the Constitutions of Puerto Rico and the United States;

2. ISSUE an ORDER invalidating Article 103 and/or prohibiting the application of the Article against the plaintiffs for their private, consensual and intimate conduct;

3. ORDER the defendant, under the jurisprudence and precedents of Puerto Rico and 42 USC 1983, to pay to the plaintiffs a reasonable sum for attorneys' fees for this case, as well as the costs necessarily incurred in the litigation of this action;

4. PROVIDE to the plaintiffs whatever other remedy that the law and justice requires.

Respectfully submitted in San Juan, Puerto Rico, 23 of June of 1998.

NORA VARGAS ACOSTA
Colegiada Num. 9088 Edif.
First Federal Suite 1004
1054 Ave. Ponce de Leon
San Juan, Puerto Rico 00927

______________________

MICHAEL ADAMS (*)
MATTHEW COLES
American Civil Liberties Union Lesbian & Gay Rights Project
125 Broad Street, 18th Floor
New York, NY 10004-2400

______________________

CHARLES S. HEY MAESTRE
Colegiado Num. 8845
Calle Las Marias 206
Urb. Hyde Park
San Juan, Puerto Rico 00927

(*) This appearance is pending approval of the Court.


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