CLA Blog




Caleb Orozco v Attorney General of Belize

08 Oct 2016 22:40 | Anonymous

The CLA has been a supporter in a case involving the constitution of the Commonwealth country of Belize and section 53 of the Criminal Code which essentially criminalised homosexuality since 2010.

The case was pursued by a Mr Caleb Orozco and the CLA was an interested party in the litigation along with the Human Dignity Trust and the International Commission of Jurists. The other interested party was UNIBAN which is a voluntary organisation representing LGBTI people.

Section 53 of the Belize Criminal Code provided that:

“Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years.”

The accepted statutory interpretation of carnal intercourse against the order of nature included the criminalisation of anal sex between two consenting adult males in private.

The Belize Constitution recognised personal privacy as well as human dignity and the privacy of the home.

The matter proceeded before the Honourable Chief Justice Kenneth Benjamin who  made a declaration that s.53 of the Belize Criminal Code contravened the Constitution to the extent that it applied to carnal intercourse against the order of nature between persons.

The evidence before His Honour demonstrated that Mr Orozco had been discriminated against on the basis of his sexual orientation.  There was no evidence to show that such discrimination was justifiable.

In Belize, the Supreme Court has the power to advise the language of an existing law to bring it into conformity with the Constitution.  This law was in place prior to the Constitution.  The challenge in the case was that the restriction to consensual acts between adults in private.  The challenge did not extend to non-consensual acts, nor sexual acts with children and sexual acts with animals.

As a result of the case the law was written down to make it clear that the section did not apply to consensual acts between adults in private.

Belize is therefore the latest in a number of Commonwealth countries that had repealed or written down the anti LGBTI laws that were brought in under colonial rule across the Commonwealth.

We are especially pleased by the comments in the judgment that the CLA has an “impressive track record of intervention in major human rights cases worldwide”, and we thank the dedicated lawyers who assisted in the presentation of the case on our behalf.

Interested parties who were also involved in the litigation included the Roman Catholic Church of Belize, the Belize Church of England Corporate Body and the Belize Evangelical Association of Churches. 

The court heard evidence that criminalisation of homosexuality and the associated stigmatisation perpetuated systemic discrimination and violence.  It also had an affect on serious health issues.  The stigma of homosexuality would cause a reluctance on a person with HIV to seek treatment, thus leading to an increase in the prevalence of HIV.

In my own jurisdiction of Australia, there will be a plebiscite taken of the nation (providing enabling legislation passes the Parliament) with respect to same sex marriage.  I have no doubt that the churches will be involved in raising their concerns with that.  If same sex marriage is introduced in Australia I am of the understanding that churches will not be forced to conduct such proceedings (indeed in my own jurisdiction some churches will not conduct wedding ceremonies for people who have previously been divorced).

However it is a much more serious matter to for the churches to try and enshrine the criminalisation of homosexuality.

His Honour the Chief Justice noted the respect and influence that the churches in Belize have. He also noted the acknowledgement of the supremacy of God in the preamble to the Constitution.  However, Belize is a secular state with a written Constitution which provides for the protection of fundamental human rights and freedom.

I noted the Criminal Code criminalised homosexuality, and it also carried a very significant penalty of imprisonment for ten years.

I find it difficult to see any justification for a view to be taken - and sought to be enforced by law - that activities of consenting adults in private should render them liable to imprisonment for ten years. I am frankly astounded that the churches would fight to enshrine that law.


Comments

  • 13 Dec 2016 12:27 | Anonymous member
    As a new member and from a Firm which is a keen supporter of the Human Dignity Trust, which fights for the decriminalisation of intimacy between persons of the same sex, across the Commonwealth, I am delighted that the CLA is not neutral on these issues.
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