Sentencia 0023-2003-AI/TC, Constitutional Tribunal of Peru (9 June 2004)
The Ombudsman’s Office filed a motion with the Constitutional Tribunal, challenging the constitutionality of Article 269 of the Military Justice Code, which prohibited same-sex sexual activity within the military.
Whether the provision prohibiting homosexual conduct within the military violated the rights to human dignity and to equality before the law.
Constitution of Peru, Article 1 (protection of the individual and respect for dignity) and Article 2 (equality before the law and non-discrimination).
Military Justice Code (Decree No. 23214), Article 269.
Reasoning of the Court
The first paragraph of Article 269 provided that a soldier who carried out “indecent acts or acts against nature with a person of the same sex, within or outside the military premises, will be punished with expulsion from the Army if he is an officer, or with prison if he is a troop soldier”. The second paragraph of the provision dealt with the use of violence, threats or abuse of authority, as aggravating factors.
The Ombudsman’s Office argued that Article 269 violated the constitutional rights to human dignity and to equality before the law.
Defending the law, the Attorney General argued that homosexuality was “the expression of a set of values that is not suitable for the requirements of military life”.
The Court found that the provision was unconstitutional for several reasons. First, it held that it was inappropriate for military justice to deal with issues such as indecent acts or acts against nature, since its jurisdiction should be limited to crimes related to work functions.
Second, the Court found that the provision violated the right to equality before the law by punishing indecent acts only if committed between persons of the same sex. If the purpose was to prohibit certain “indecent” sexual acts as wrongful conduct, there was no objective or reasonable ground for prohibiting such acts only when they were committed by persons of the same sex.
Lastly, Article 269 violated the equality principle by prohibiting sexual acts carried out within military premises only when they were considered “against nature”, whereas other kinds of sexual acts on military premises were not prohibited.
The Court declared Article 269 of the Military Justice Code unconstitutional.
Sentencia 0023-2003-AI-TC, Constitutional Tribunal of Peru – Spanish (full text of judgment in Spanish, PDF)