Law Criminalising Gay Men Struck Out

CASE NAME

Caleb Orozco v. Attorney General of Belize

COUNTRY                                   

Belize

COURT/ TRIBUNAL

Supreme Court of Belize

STATUS

Judgment delivered on 10 August 2016

Summary

Belize’s Criminal Code (Section 53) criminalised ‘carnal intercourse against the order of nature’ which included consensual sexual conduct between adult males in private. The law, which though rarely used carried a ten-year prison sentence, disproportionately impacted on the lives of gay men. Caleb Orozco, a Belizean gay man and a prominent human rights defender, launched a challenge to Section 53 in the Supreme Court of Belize. The case was heard in May 2013 and the judgment was delivered by Chief Justice Kenneth Benjamin on 10 August 2016.

Judgment

The Supreme Court found that a law criminalising consensual sexual conduct between adults in private, including same-sex intimacy, violates the constitutional rights to dignity, privacy, equality before the law, and non-discrimination on grounds of sex, and cannot be justified on the basis of ‘public morality’. The Court also found that international treaty obligations must inform the interpretation of the Constitutional rights. As a result, the law was declared void and struck out to the extent that it captures consensual sexual conduct between adults in private. The court awarded costs to the Claimant.

Click here to download the judgment [pdf].

What is this case NOT about?

This case is not about gay marriage or any state endorsement of homosexuality. Neither does it infringe on any religious rights or freedoms. It is about upholding the basic human rights of all citizens, including LGBT people.

Background

The criminalisation of consensual male homosexual conduct is a legacy of British colonial rule.  A total of 76 jurisdictions around the world still make same-sex intimacy a crime. Of these countries, 38 are within the Commonwealth and this included all-but-one (the Bahamas) of the countries in the Commonwealth Caribbean.

There is evidence that laws criminalising homosexuality lead to: 

  • Violence against LGBT people, who are less likely to seek legal protection
  • Extortion and blackmail of LGBT people by police and criminals alike who use the existence of anti-gay laws as leverage
  • Poor public health – in the non-Commonwealth Caribbean where homosexuality is not criminalised the HIV prevalence rate for men who have sex with men is 1 in 15, whereas in the Commonwealth Caribbean, where gay men are criminalised, it rockets to 1 in 4; lesbians, often forced or pressured into heterosexual marriages, may have little or no control over their sexual and reproductive health and rights, and can be subjected to so-called ‘corrective’ rape
  • An environment in which LGBT people are marginalised
  • Other serious human rights abuses and harmful effects such as: imprisonment, state persecution, kidnap, murder, rape, harassment, eviction from property, self-harm, suicide, family rejection, isolation, depression, fear of violence.

Who is involved?

The case has been Caribbean-led by a coalition of organisations since its inception and has a groundswell of grassroots support from across the LGBT, academic, legal and NGO communities in several Caribbean countries. Prominent groups involved include the leading LGBT organisation in Belize the United Belize Advocacy Movement (UNIBAM); the University of the West Indies (UWI); and the UWI Rights Advocacy Project (U-RAP), which initiated the litigation in Belize.

Caleb Orozco, a Belizean citizen and prominent advocate for the rights of LGBT people, is the individual ‘Claimant’ in this case. UNIBAM is an 'Interested Party' supporting the case. The international legal community, through the Human Dignity Trust, the International Commission of Jurists and the Commonwealth Lawyers Association, supported Mr. Orozco’s case as 'Interested Parties'.

The Attorney General is the ‘Defendant’ on behalf of the Government of Belize.

A group of churches – namely the Roman Catholic Church of Belize, the Belize Church of England Corporate Body, and the Belize Evangelical Association of Churches – opposed the case as ‘Interested Parties’ and sought to maintain the criminalisation of gay men in Belize.

Representation

Mr. Orozco and UNIBAM were represented by Lisa Shoman SC, Chris Hamel-Smith SC, Simeon Sampson SC and Westmin James. The Human Dignity Trust, International Commission of Jurists and Commonwealth Lawyers Association were represented by Belizean counsel Godfrey Smith SC and Debevoise & Plimpton LLP led by Lord Goldsmith QC.

Applicable Law 

Mr Orozco and the supportive Interested Parties successfully argued that s. 53 violated a number of guarantees in the Belizean Constitution. These include:

RIGHTS

PROVISIONS              

Right to human dignity

Art. 3(c)

Right to personal privacy

Arts. 3(c) and 14(1)

Right to equality before the law, equal protection of the law and freedom from discrimination

Art. 6(1) and 16



Relief Sought 

Mr Orozco and the supportive Interested Parties sought and obtained a declaration that s. 53 violates the Constitution to the extent it criminalises consensual adult conduct in private.  

The Process

The hearing of this matter took place at the Supreme Court of Belize from 7-10 May 2013 before Chief Justice Kenneth Benjamin, who delivered his decision on 10 August 2016. The Supreme Court decision is subject to appeal to the Court of Appeal, and thereafter to the Caribbean Court of Justice which is the final court of appeal under Belize’s domestic judicial provisions.

See our press release for further details.

 

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