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Sodomy Laws - History of Sodomy

The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

Puerto Rico
 "The lawmaker who penalized the act in that wording and the judge who is to find guilty of its commission or is to charge the jury on its commission, have read the Holy Scriptures, the Genesis, the Deuteronomy; they know about Sodom, the ancient city of Palestine and its devious sexual practices; they have read Saint Paul, Epistle to the Romans and Saint Thomas—The Summa Theologica—which deal with the matter."

The Victorian Morality Period, 1873-1948

I. Sodomy

Puerto Rico was obtained by the United States after the Spanish-American War of 1898. The Organic Act of 1900 1 specified that all laws of Spain would remain in force in Puerto Rico unless and until changed. 2

Puerto Rico enacted its own criminal code in 1902 3 that abrogated common-law crimes 4 and outlawed sodomy with the common-law definition and a penalty of "not less than five years." 5 This conceivably allowed life imprisonment.

In 1926, in the first reported sodomy case, People v. Diaz, 6 the Puerto Rico Supreme Court ruled 4-1 that sodomy could be accomplished between people of the opposite sex. 7

The sodomy law was changed in 1943 8 to establish a penalty of 1-10 years, but the common-law definition was retained. 9

In a 1944 case, People v. Castro, 10 the Puerto Rico Supreme Court rejected the effort of the defendant to have his penalty for sodomy reduced because he had engaged in sodomy with two boys while intoxicated. The Court also rejected Castro’s contention that, because the 1943 law was passed shortly after his sentencing, he should be entitled to a lesser sentence. 11 Justice Angel DeJesus, writing for the Court, concluded that the man

who abuses the innocence and weakness of a child, and uses him to satisfy his animal instincts, deserves no pity since he had none for the ignorant and defenseless child. 12

II. Sterilization

In 1937, Puerto Rico enacted a sterilization law 13 that turned out to be the last one ever enacted in the United States. The statute permitted sterilization of any "sexual pervert" in "any institution" supported by the Puerto Rican or any municipal government on the request of the institution. 14 In addition, such "perverts" not residing in any such institution could be sterilized on the petition of "the nearest relative, guardian, or friend." 15 Sterilization was to lead to loss of reproductive capabilities, and expressly was forbidden to "depriv[e] him of his sexual functions." 16 This latter provision is curious, since the typical "sexual pervert" did not engage in sexual activity that would lead to reproduction.

There is no case law under this statute, nor any revision to it.

Period Summary: Once part of the United States, Puerto Rico adapted quickly to English law, passing a sodomy law with the English common-law definition. The sparse case law during this era was limited to a rejection of heterosexual immunity as well as an intoxication defense. Puerto Rico also authored the last sterilization law to be enacted in the United States, and it included "perverts," something laws enacted in the 1930s otherwise did not.

The Kinsey Period, 1948-1986

In 1950, the Puerto Rico Supreme Court decided, in People v. Gutierrez, 17 that emission was not required to complete the crime. 18 The opinion was very short because the Court felt that "[g]iven the crime involved we do not deem it advisable to summarize the evidence introduced." 19

In People v. Santiago Vasquez, 20 decided in 1967, the Puerto Rico Supreme Court rejected a constitutional challenge to the sodomy law as being too vague to give due process. 21 Justice Carlos Santana Becerra explained why a more detailed law was not needed. The

lawmaker who penalized the act in that wording and the judge who is to find guilty of its commission or is to charge the jury on its commission, have read the Holy Scriptures, the Genesis, the Deuteronomy; they know about Sodom, the ancient city of Palestine and its devious sexual practices; they have read Saint Paul, Epistle to the Romans and Saint Thomas— The Summa Theologica —which deal with the matter. They have knowledge of the ancient legislation, the Roman, the Gothic, the Fueros, Las Siete Partidas by Alfonso the Learned—Law I, Seventh Partida —they have knowledge of history and the sciences and they are intellectually cultivated persons who know what sodomy is and its practices against nature, and the meaning of this concept in the penal statute. 22

The Supreme Court decided People v. Ortiz Vasquez 23 in 1969. The case involved a medical resident who sexually assaulted a 15-year-old male who was a patient in a hospital. The Court upheld the right of the trial court to refuse to order a sanity examination for a witness, barring evidence that the witness actually might be insane. 24

Although Gay activists were confident of the repeal of the sodomy law when the Puerto Rico legislature considered a comprehensive criminal code revision in 1974, since the committee proposing the new code made that recommendation, 25 what actually got enacted 26 left Puerto Rico in a unique situation. A definition of sodomy still was not created, but the wording was changed so that "sexual intercourse" became a crime only between people of the same sex, whereas "the crime against nature" was criminal with any human being. The 1-10 year sentence was retained. 27 Another section prohibited the maintenance of houses of "prostitution or sodomy." 28 Also in the new criminal code was a broadly worded solicitation law. Everyone

who in a public place or a place open to the public makes obscene propositions, in a scandalous manner as is offensive to public decency, shall be punishable by imprisonment for a term not more than six months, or a fine not more than two hundred and fifty dollars. 29

A third provision in the new code was that dealing with prostitution. 30 This section set a misdemeanor penalty for anyone engaging in "sexual relations with another person for money or a fee, remuneration or any form of payment[.]" 31 The "sex of the parties" was no defense, clearly recognizing same-sex prostitution. 32 Arguably, one could avoid the felony penalties for sodomy in Puerto Rico by accepting money for the act, thus reducing the penalty automatically to a misdemeanor.

Follow-up information on the new code was that the legislature intended to repeal the sodomy law, but "public outcry" was sufficient to make them change their minds. Gay activists then mounted a campaign to have the Governor of Puerto Rico veto the code, but he refused to veto the entire code just to stop the sodomy law. 33

A last-ditch effort to block the new code from taking effect was a court suit seeking an injunction against it. Two Gay male couples brought the suit, but the court refused to grant the injunction because there was no "real or immediate" threat of prosecution of the plaintiffs. 34

In 1979, the sodomy law was revised to protect people against force. 35 The preamble noted that in Puerto Rico, "sexual intercourse between persons of the same sex, be it men or women, is penalized[.]" 36

In 1980, a law was enacted 37 to deal with habitual criminals. Any person convicted three or more times of a felony, which would include consensual sodomy, "is presumed to show a persistent tendency to break the law" and could be sentenced to a fixed term anywhere from 20 to 99 years. 38 The sodomy law also was adjusted. Keeping the same strange language from the 1974 code, the penalty was changed to a fixed term of six years, but, with undefined "extenuating circumstances," the Courts could reduce the penalty to four years, and with equally undefined "aggravating circumstances," the penalty could be increased to 10 years. 39

Another revision in 1983 40 raised the penalty to a fixed term of 10 years, and raised from 10 to 12 years the term which a person could receive if accompanied by still undefined "aggravating" circumstances, and raised from four to six years the penalty if accompanied by equally still undefined "extenuating circumstances." 41 Oddly, the preamble to this law spoke of the "harm inflicted on the victim and on society" of many crimes 42 and pointed out that the Police Superintendent reported that

the crimes most frequently committed in Puerto Rico were murder, manslaughter, rape, robbery, aggravated assault, crimes against property, burglaries, and unlawful appropriation. This act has the purpose of increasing the penalties for some of these crimes in order to adjust them to the Puerto Rican reality, and to fight the incidence of crime. 43

Sodomy was not listed as one of the most common crimes in Puerto Rico, but the penalties for it still were raised. Also, the legislature raised the penalty only for "some" of the most commonly reported crimes.

II. Sterilization

The sterilization law was repealed in 1960. 44

Period Summary: Puerto Rico showed almost no support for the Kinsey reports or the Model Penal Code, with a retention of felony penalties for consensual sodomy in its 1974 criminal code revision. Court opinions consistently upheld sodomy convictions, with one as late as 1967 appealing to religious authority. No same-sex sodomy cases were reported in Puerto Rico during the second half of this era. The sterilization law was repealed in 1960, only the second such law to be repealed.

The Post-Hardwick Period, 1986-Present

A proposal to repeal the sodomy law was introduced into the Puerto Rico Senate in early 1992. It was opposed by conservative religious leaders. 45

Period Summary: Unlike elsewhere, if reported cases are to be used as a gauge, in Puerto Rico sodomy is pretty much a heterosexual crime. No same-sex sodomy case has been reported since 1969, although numerous heterosexual cases have.

Footnotes

1 31 Stat. 76, enacted Apr. 12, 1900.

2 Id. at 79, §8.

3 Revised Statutes and Codes of Porto Rico, [sic] (San Juan:Boletin Mercantil Press, 1902???), "Penal Code," enacted Mar. 1, 1902.

4 Id. §5.

5 Id. at 537, §278.

6 35 P.R.R. 212, decided Mar. 26, 1926.

7 Id. at 213-214.

8 Laws of Puerto Rico 1943, page 106, Act 42, enacted May 4, 1943.

9 Id.

10 63 P.R.R. 454, decided Apr. 26, 1944.

11 Id. at 456.

12 Id. at 458.

13 Laws of Puerto Rico 1937, page 267, Act 116, enacted May 13, 1937, effective Aug. 11, 1937.

14 Id. at 268, §3.

15 Id. §4.

16 Id. §5.

17 71 P.R.R. 787, decided Nov. 15, 1950.

18 Id. at 788.

19 Id.

20 95 P.R.R. 581, decided Dec. 14, 1967.

21 Id. at 583-584.

22 Id. at 584-585.

23 98 P.R.R. 165, decided Dec. 30, 1969.

24 Id. at 170.

25 The Advocate, Vol. 133 (Mar. 13, 1974), page 9.

26 Laws of Puerto Rico 1974, Act 115, enacted July 22, 1974.

27 Id. §103.

28 Id. §108.

29 Id. §107. Currently codified as §4069.

30 Id. §107-A. Currently codified as §4069a.

31 Id. (a).

32 Id. (b).

33 The Advocate, Vol. 150 (Nov. 6, 1974), page 12.

34 The Advocate, Vol. 155 (Jan. 15, 1975), page 6; Vol. 162 (Apr. 23, 1975), page 12; Vol. 163 (May 7, 1975), page 14.

35 Laws of Puerto Rico 1979, page 115, Act 55, enacted May 30, 1979.

36 Id. at 116.

37 Laws of Puerto Rico 1980, page 279, Act 101, enacted June 4, 1980.

38 Id. at 285, ch. II.

39 Id. at 292, article 103.

40 Laws of Puerto Rico 1983, page 121, Act 57, enacted June 3, 1983.

41 Id.

42 Id. at 121.

43 Id. at 122.

44 Laws of Puerto Rico 1960, page 123, Act 69, enacted June 8, 1960, effective immediately.

45 Washington Blade, Apr. 10, 1992, page 33.

Divider

Puerto Rico

  • Statute: Article 103, Sodomy. Unconstitutional under Lawrence v. Texas.
  • Penalty: 8 - 20 years
  • Classification: Felony
  • Restrictions: None

Statute

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. If there are increasing circumstances, the penalty could be risen up to a maximum of twelve years; if there are extenuating circumstances, it could be reduced down to a minimum of six years".

History

1937 Puerto Rico enacts the nation’s last sexual sterilization law and the last that covers “sexual perverts.”
1967 The Puerto Rico Supreme Court upholds its sodomy law, saying that the legislators who enacted the law “have read the Holy Scriptures, the Genesis, the Deuteronomy; they know about Sodom, the ancient city of Palestine and its devious sexual practices; they have read Saint Paul, Epistle to the Romans and Saint Thomas— The Summa Theologica —which deal with the matter.”
1974 Puerto Rico’s new criminal code creates a unique sodomy law in the United States in that anal sex is illegal between any two persons, but oral sex is illegal only between people of the same sex.

News

Legal Cases

Action Alerts

Allies

Coalition Against Article 103 and Pro Right to Intimacy
COALICIÓN CONTRA El ARTÍCULO 103 Y PRO DERECHO A LA INTIMIDAD
PO Box 9021003
Viejo San Juan PR 00902-1003
Puerto Rico
Tel :787-787-7274
Fax :787-787-7686
Email: aaardin@coqui.net