|CASE NAME||Caleb Orozco v. Attorney General of Belize|
|COURT/ TRIBUNAL||Supreme Court of Belize|
|STATUS||Judgment delivered on 10 August 2016|
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.
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.
The Attorney General (the Appellant) appealed the Supreme Court’s judgment, albeit limited to two particular grounds, namely freedom of expression and non-discrimination on the grounds of “sex” under Sections 12 and 16 of the Constitution respectively. Notably, the remaining grounds upon which Section 53 of the Criminal Code had been held to be unconstitutional – dignity, privacy and equality before the law under Sections 3, 6 and 14 – and the decriminalisation of same-sex intimacy itself were not challenged by the Government. The Catholic Church, having filed an appeal against the Supreme Court ruling in its entirety, withdrew its appeal in March 2018. Importantly, the judgment of the Court of Appeal will therefore not affect the decriminalisation of same-sex intimacy by the Supreme Court in 2016.
A Court of Appeal hearing was held on 29 October 2018. Caleb Orozco (the Respondent) and UNIBAM (Interested Party) raised preliminary objections to the appeal, arguing that it was purely academic, given that it could not reverse the decriminalisation of consensual same-sex intimacy by the Supreme Court, and otherwise without merit.
Solicitor General Nigel Hawke argued on behalf of the Appellant, however, that the appeal should be heard because of its potentially wider implications. In appealing these particular grounds, the Appellant sought to argue that the expansive interpretation of “sex” under Section 16 by the Supreme Court, to encompass sexual orientation, constituted a breach of the doctrine of separation of powers – remarking that “(t)here is a fine line between a judge’s role to interpret the constitution and making constitutional amendments.” It was asserted that only the National Assembly of Belize is properly placed to expand the protective scope of Section 16. It was further argued, in relation to freedom of expression under Section 12, that the Supreme Court had failed to develop and articulate its reasoning for finding Section 53 to be unconstitutional in this regard.
As in the Supreme Court, the Human Dignity Trust engaged with the Court of Appeal proceedings as an Interested Party, along with the Commonwealth Lawyers Association and the International Commission of Jurists. The Interested Parties were represented by Tim Otty QC (Blackstone Chambers barrister and Human Dignity Trust founder), Leslie Mendez (Marine Parade Chambers), and Conway Blake (Debevoise & Plimpton LLP). In seeking to uphold the Supreme Court’s ruling in respect of these particular grounds, the Respondent and the Interested Parties invited the Court of Appeal to give consideration to a substantial body of jurisprudence, from UN Human Rights Committee and Caribbean Court of Justice decisions to the domestic case-law of numerous other Commonwealth countries, including Botswana, Kenya, South Africa, Trinidad & Tobago and India.
Having heard the arguments, the Court of Appeal has reserved judgment, and will deliver its decision soon.
The criminalisation of consensual male homosexual conduct is a legacy of British colonial rule. A total of 72 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.
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.
Mr Orozco and the supportive Interested Parties successfully argued that s. 53 violated a number of guarantees in the Belizean Constitution. These include:
|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|
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 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.