Last edited: January 07, 2005

Puerto Rico: Support Sodomy Law Repeal

The International Gay and Lesbian Human Rights Commission (IGLHRC), April 23, 2003
Action Alert


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
Fax: +787 724-2267

Hon. Rafael Irizarry Cruz
Vicepresidente (Vice-president Law Commission)
Comisión de lo Jurídico
Fax: +787 805-1515

Hon. Sixto Hernández Serrano
Fax: +787 725-9667

Hon. Kenneth McClintock Hernández
Portavoz de la Minoría (Minority spokeperson)
Fax: +787 722-2684

Hon. Fernando Martín
Fax: +787 722-4738

And please send copies to:
Movimiento Ecuménico Nacional de Puerto Rico


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(from Ireland to Ecuador, from Australia to South Africa, and including nearly all countries in Latin America) have repealed similar legislation where it existed, recognizing that consensual sexual activity between adults of the same-sex is no concern of the criminal arm of the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.


[Your Name]
[Your Organization]


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 Newscenter Staff, April 21, 2003; and “Government Appeals Supreme Court Ruling”, by Sandra Ivelisse Villerrael, Associated Press, April 28, 2003.)


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).


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.

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