Puerto Rico’s Law 103: A Colonial Imposition
A gift in 1902 from California to Puerto Rico, the
U.S.’s new Caribbean possession.
The
Gully, March 14, 2003
Email: letters@thegully.com
http://www.thegully.com/essays/gaymundo/030313_PR_sodomy_law_103.html
AMERICAS
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, a model for the original Puerto Rico Code
which the US imposed on its new Caribbean possession 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: 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 Sánchez de León, a member of
the National Ecumenical Movement of Puerto Rico, turned herself in to 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 Reverend Sánchez de León
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 Reverend Sánchez de León had a personal agenda in submitting her
confession.
On February 1999, three homosexual couples (Reverend Sánchez
de León and her partner, José Joaquín Mulinelli Rodríguez and his partner,
and Edgar Danielsen Morales and William Morán Berberena), together with the
American Civil Liberties Union (ACLU), challenged the constitutionality of
Article 103 in court. The case ended on June 28, 2002, when the Puerto Rico
High Court ruled that Article 103 was not unconstitutional.
Carlos Vizcarrando Irizarry, president of the Puerto
Rican House 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.”
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”
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 of the United States. It was
acquired by the victorious U.S. at the end of the 1898 Spanish-American war.
Its official name is “Commonwealth of Puerto Rico,” an euphemism that has
not fooled the United Nations, which has long classified it as a colonial
territory.
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