It is widely known that the Venezuelan military carries huge political weight in the country, that high level officers hold key government positions, and that egregious military abuses, including extrajudicial killings, torture, and arbitrary detentions, remain in impunity. Yet one perverse aspect of the military’s open disregard for human rights has not received the attention it deserves.
A draconian provision in Venezuela’s Military Code of Justice punishes consensual same-sex conduct by service personnel with up to three years in prison and dismissal. The provision, which is under a chapter in the code called “on cowardice and other crimes against military decorum,” penalizes committing “sexual acts against nature.” It does not prohibit consensual heterosexual sex.
It is unclear how many convictions have taken place under this law. At least one reportedly occurred in 2013. But the law has wider consequences. There are reports that the possibility of dismissal under the law is being used by supervisors and others to harass gay and lesbian service members.
Giovanni Piermattei, president of Egalitarian Venezuela, a civil society organization working on LGBT rights in Venezuela, told Human Rights Watch that his organization has received repeated complaints about this form of homophobic harassment, as recently as in January. Following a challenge by Egalitarian Venezuela, the Supreme Court of Justice has announced that it will review the constitutionality of the provision.
This provision makes Venezuela one of the few remaining countries in Latin America to criminalize same-sex conduct. Anglophone countries in the Caribbean like Jamaica, Guyana, and Dominica still have such laws on the books, a relic of British imperialism. All told, same-sex conduct remains criminalized in 69 countries, including in places like Iran, Myanmar, and Sudan.
Bans on same-sex conduct, including in the armed forces, violate international human rights law, including the rights to privacy, against arbitrary detention, and to non-discrimination and equality. National, regional, and international bodies have roundly rejected claims that factors such as military discipline can be used as justification for bans on same-sex relations in the military.
Egalitarian Venezuela’s challenge to the law could provide some hope for service personnel suffering from the abuses and stigma arising from this discriminatory legislation. Indeed, the court has previously expanded the rights of LGBT people in the country, with a 2016 ruling upholding joint parentage for same-sex couples. Yet, Venezuela does not have an independent judiciary.
The court has failed to act as a check on executive power ever since former President Hugo Chávez and his supporters in the National Assembly took political control of the institution in 2004. Justices on the court have declined to consider challenges to Venezuelan authorities’ flagrant assaults on the rule of law and the separation of powers.
When the National Assembly – packed with government supporters after a widely disputed election in December 2020 –revised the Military Code of Justice in 2021, it missed an opportunity to repeal the provision criminalizing same-sex conduct. The National Assembly responds to Nicolas Maduro, who is also the head of the Venezuelan military.
LGBT rights are one of the many human rights deficits under the Maduro government. Venezuela has no comprehensive civil legislation protecting people from discrimination on the grounds of sexual orientation and gender identity, though it provides limited protection in certain areas. For example, the Labor Code prohibits discrimination on the basis of sexual orientation, while a housing law prohibits discrimination on the basis of sexual orientation and gender identity in this sector. But while the law criminalizing same-sex conduct in the military remains in force, it will continue to signal state sanction for discrimination and prejudice.
The authorities answering to Maduro appear to have granted concessions only in the face of intense international pressure. It is essential for key international actors from across the political spectrum who have championed LGBT rights at home to raise their voices to support the efforts of Venezuelan human rights defenders who are defying discrimination in their country’s powerful military.
