Re: [Marxism] Supreme Court ruling against the death penalty for "child rape" and the Cuban penal code

[David Picón Álvarez <david@xxxxxxxxxxxxx>]

I've been taking a look at the Cuban penal code. So I can hopefully give a 
reasonably informed response. That said: some of the things stated on the 
post I'm replying are not accurate, or at least not complete.

From: "David Thorstad" <binesi@xxxxxxxxx>
[...]
> journalist. Sad to say, the ruling puts the imperialist Court in a more
> enlightened category than the Cuban penal code (whose problematic and
> offending articles I provided recently in my post on "Big gay
> celebration in Cuba"--about which I find it odd that no one has yet
> responded, since, I presume, these draconian provisions of the Cuban
> penal code are unknown to most supporters of the Cuban regime, whether
> gay or straight. Cuban law provides for death, for instance, for a
> consensual relationship with a 14-year-old (such relationships do
> happen). Do these supporters agree with such laws? Should such laws be
> reformed?

1) I agree that law is wrong. 2) I agree it should be reformed. 3) Death is 
only the top range of the possible sentece to be imposed. Notice that the 
type is constituted without violence or intimidation and there is not a 
special qualified type that contemplates these circumstances. Therefore it 
would be an incorrect ruling to impose death in a case that would not 
involve violence and intimidation. 4) We should compare like with like: have 
Cuban courts imposed the death penalty in accordance with this article? We 
know US courts have, because the SC had to rule on it. 5) We therefore also 
know that there were laws in the US which imposed death for such instances 
of rape. Where the law of some capitalist countries is ahead (not the US) is 
in regards to consensual relationships, although the figure of statutory 
rape is fairly simillar to the article we're discussing on the penal code. 
6) Although I'm not a Cuban lawyer and therefore have no idea how widely, 
narrowly, etc, the courts apply this precept of the penal code, a possible 
defence would lie on article 8.2, which reads, roughly, as follows: an 
action or ommission, even fulfilling the elements constituting a crime, is 
not so considered if it lacks danger to society due to the small importance 
of its consequences and the personal circumstances of its author. This was 
just translated by me, and is probably a bit clumsy but reasonably accurate. 
7) I bring the attention of the reader to article 309.1, with respect to a 
list of types including rape and violent pederasty, which states that 
prosecution can only proceed after a complaint of the victim, whichever 
their age, or that of a more or less small set of relatives, unless it 
produces scandal. Presumably someone who had consensual sex would not lodge 
such a complaint.

> Is it possible for a same-sex group independent of the regime
> to be formed in Cuba to agitate for penal code reform (or anything
> else)? How can such povisions be squared with the image often presented
> by regime supporters of a near gay paradise?

Should it be possible? We're speaking of a country which is constantly being 
undermined from without. This is not a theoretical consideration, there is 
money being brought from the outside to try to destabilize the state. Under 
these circumstances, I think it is at least understandable that the Cuban 
penal code is very careful about independent organizations, lest they be in 
reality dependent of a foreign power.

>                      of a 12-year-old or if sickness results:  8-20
> years in jail or DEATH

Note that this may be pretty much equivalent to murder, for instance, in the 
case of AIDS. And again, it is the top range of the sentence, so one 
wouldn't expect it to be invoked but in exceptional cases.

> article 299:  "pederastia con violencia" (a vague term. Does it mean
> anal intercourse, "pederasty" [i.e., sex between a man and a male youth?

Pederastia activa does imply penetration. I get the sense that it does 
involve anal intercourse, but it is uncertain. It is somewhat outdated 
language, like the use of "contra natura" in article 298 to refer to 
non-vaginal penetration. It does refer to a man having sex with a male 
youth, yes.

> How is "violence" defined?]: 7-15 years. This crime includes even
> /consensual/ sex with a 14-year-old:  8-20 years in jail or DEATH

Violence is violence, the use of force. It would be better to use the same 
word as is used in art 298.1.a, fuerza, but I'm pretty sure it means the 
same. At any rate, violence is not the "low end" of the type, but 
intimidation, which is a lower threshold to fulfill.

As to the consensual sex with a 14 year old, I think this should be 
reformed. This said: 1) as indicated above, it would not make sense to apply 
death to this type without qualifying circumstances, and 2) most capitalist 
countries consider illicit consensual sex with a 14 year old, including the 
US, I think. Consider also the implications of art 309.1.

> article 303a (creating a "public scandal"): this is defined, vaguely, as
> "importune a otro con requerimientos homosexuales," which suggests that
> it means cruising someone (a male, apparently, since the feminine form
> is not used) who takes offense at the approach: 3 months to 1 year in jail

The gender thing shouldn't be considered in that light. In Spanish it is 
possible to use the male to refer to either male or female genders. It has 
so far been rare to find in laws a formulation of the type "otro u otra". As 
to the substance of the article, I'd take out 303 entirely, not just letter 
a. We should be honest, though, and indicate that the sentence is not 
necessarily jail, but it can consist of a fine of 100-300 quotas. Criticism 
is fine, but let's not go beyond the facts either.

> article 310 ("corruption of minors"):  2-5 years in jail for encouraging
> a 16-year-old (!) to "ejercer el homosexualismo o la prostitucion" (to
> practice homosexualism or prostitution). This could easily apply to a
> gay publication and is, again, vague.

This article is simply bad. From the substance to the form, the appalling 
language it uses. Again I ask you to be careful with the facts though, the 
article talks of someone younger than 16.

Hope my comments are useful.

--David.


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