Article 365 of the Penal Code of Chile
Article 365 of the Penal Code of Chile was an article of the Penal Code of Chile that criminalized sodomy between adults. It came into force in 1875 and, for more than 120 years, stipulated for those guilty a sentence of minor imprisonment in the medium degree; that is, between 541 days and 3 years in prison. Together with Article 373, which refers to offenses against "modesty or good customs", Article 365 was used by the police to make numerous arrests and file records of homosexuals throughout the 20th century.
In 1999, the criminalization of sodomy was removed from Article 365, thus decriminalizing homosexuality in Chile, although the age of consent between same-sex couples remained at eighteen. Article 365 was fully repealed on 24 August 2022, with the aim of equalizing the age of consent between heterosexual and homosexual couples.
History
The commission drafting the original Chilean Penal Code began its sessions on March 8, 1870, and in the sessions of 10 and 17 April 1872, it discussed the issue of sodomy, pointing out that sodomy should remain as a crime to separate it from others such as incest, statutory rape, rape, and indecent assault.Article 365, which was enacted in November 1874, dealt with the practice of sodomy and considered it a crime. Those found guilty were sentenced to anywhere between 541 days and 3 years in prison. During the 19th century, criminal cases for sodomy increased compared to the colonial period and were more frequent in the latter half of the century. In trials for sodomy, medical examinations were performed on the anus and rectum of the accused in order to determine the accuracy of the accusations against them.
The original wording of Article 365 remained unchanged for nearly a century. The first and only substantial amendment occurred in 1972 during the government of Salvador Allende, through Law 17727, which increased the penalty to 15 years in prison in cases where force or intimidation was used, the victim was deprived of reason, or if the victim was under fourteen years of age. The amendment made the penalty, in cases where there was no consent, equal to that for rape. The term "rape" still considered only women as victims, but left the original clause unchanged, so consensual sodomy continued to be criminalized.
During the government of Patricio Aylwin, the first attempts to modify the spirit of the law began, with the request to modify various articles of the Penal Code regarding the crimes of sodomy and rape being presented to the National Congress on 3 August 1993. It was not until 1999 that homosexuality was decriminalized in Chile; on 16 June, the reform to the Penal Code was approved, being promulgated on 2 July and published in the Official Journal of the Republic of Chile on 12 July, entering into force immediately.
Despite the general decriminalization, Article 365 remained in force, specifically in regard to sexual relations involving those under eighteen years of age, even though the age of sexual consent in heterosexual relations was fourteen. This generated a series of accusations of discrimination and homophobia, and was denounced by international organizations such as the Committee on the Rights of the Child of the United Nations. In 2009, a bill was proposed that attempted to completely repeal Article 365, and in August 2010, LGBTQ+ organizations together with the Dutch embassy in Chile organized a campaign to promote the approval of the repeal.