Puerto Rico: Official Cites "Latin American, Christian" Values in
Defense of Sodomy Law
The International Gay and Lesbian Human Rights Commission (IGLHRC),
May 14, 2002
Emergency Response Network
—— 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
"rape." The President of the Commonwealth’s Chamber of
Representatives, Mr. Carlos Vizcarrando, has made public statements opposing
those reforms, citing Puerto Rican’s "Christian" and "Latin
American" traditions.
—— ACTION ——
IGLHRC and local organizations ask for letters supporting the amendments
and to responding to Mr. Vizcarrando’s views. Please write TODAY to:
Mr. Carlos Vizcarrando
President (Presidente)
Puerto Rico Chamber of Representatives (Camara de Representantes de Puerto
Rico)
cvizcarrondo@legislatura.gov.pr
Phone: (1) 787-722-2492
Fax: (1) 787-724-7025
Mailing address:
Apartado 9022228
San Juan, PR 00902-2228
And please send copies to:
Fundación de Derechos Humanos
phamtom@caribe.net
Movimiento Ecuménico Nacional de Puerto Rico
menpri@fuerzahumana.org
—— SAMPLE LETTER ——
Dear Mr. Vizcarrado,
We write to you in support of the following amendments 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 all references to gender and to sexual organs in the text
of Articles 99 and 100 (rape);
- To eliminate altogether Article 103 (criminalizing same-sex sexual
relationships).
In the first case, Articles 99 and 100 define rape as an act that con be
committed only against women, and only by penetration of a vagina by a penis.
To the contrary: what constitutes a rape is lack of consent on the part of the
victim: to be forced (by any means) to indulge in any sexual act is rape.
Non-governmental organizations working with women, children, sexual minorities
and prisoners—among other groups—can testify that boys, transgender people
and men are victims of rape in different circumstances. Moreover, sexual
activity, whether consensual or forced, is not limited to penises and vaginas:
human beings are capable of sexualizing any part of their bodies as well as
any instrument, with the potential not only to express love and pleasure, but
also to inflict pain. Rape is a serious human rights violation; any legal
definition needs to include all its forms, to ensure justice and protection
for all its possible victims.
In the second case, 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. 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 Articles 99 and 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,
—— 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.
Mr. Carlos Vizcarrando Irizarry, president of the Puerto Rican Chamber of
Representatives, made a statement to the press on May 12, 2002, affirming that
the Penal Code’s original version includes "the values and the way the
Puerto Rican people feel and think . . . framed in a Caribbean, Latin American
philosophy of life, that differs in life style from those of the North
American, Anglo-Saxon people" (los valores, la forma de sentir y pensar
de este pueblo puertorriqueñoŠ en el marco de una filosofía de vida
caribeña, latinoamericana que tiene unas diferencias de estilo de vida del
pueblo norteamericano, anglosajón). He added that "what might be good
for the United States in terms of liberalization of penal schemes, is not
necessarily good in Puerto Rico, where our vision and values are directly
rooted in our Christian sense of life, and in that sense our current
legislation responds to that vision" (Lo que puede ser bueno para los
Estados Unidos en términos de liberalización de esquemas penales no
necesariamente será bueno para Puerto Rico, donde tenemos unas visiones y
valores que están directamente enraizados con nuestro espíritu cristiano de
vida y en ese sentido las leyes que hay en este momento responden a esas
visiones).
—— 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
1360 Mission Street, Suite 200
San Francisco, CA 94103
USA
Telephone: +1-415-255-8680
Fax: +1-415-255-8662
Email: iglhrc@iglhrc.org
http://www.iglhrc.org
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