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Brazil: Federal Supreme Court Upholds Criminalization of Lewd Acts by Military

(Nov. 3, 2015) In a decision issued on October 28, 2015, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) upheld, but struck down portions of, article 235 of the Military Penal Code, which criminalizes the practice of lewd acts by members of the Armed Forces while carrying out their military activities and imposes a punishment of detention for six months to a year on convicted offenders. (André Richter, STF Mantém Criminalização de Ato Libidinoso em Ambiente Militar, AGÊNCIA BRASIL (Oct. 28, 2016; Código Penal Militar [C.P.M.], Decreto-Lei No. 1.001, de 21 de Outubro de 1969, PLANALTO.)

Article 235 of the C.P.M. has the sub-heading Pederasty or Other Lewd Act, and makes it a crime for a person in the military to engage in lewd acts, homosexual or not, in a place subject to military administration. (C.P.M., art. 235.)

The majority opinion of the STF was to strike from the text of article 235 the expressions “homosexual or not” and “pederasty,” considering them to be discriminatory and homophobic terms, but to uphold the understanding that a member of the military, man or woman, caught in an act considered to be lewd during the performance of his or her duties may be held criminally responsible. (Richter, supra.)