(Aug. 19, 2016) On August 10, 2016, the Supreme Court of Belize declared unconstitutional the country’s legal provision banning sodomy. (Jaclyn Belczyk, Belize Top Court Strikes Down Anti-Homosexuality Law, PAPER CHASE (Aug. 11, 2016); Adele Ramos, “Sex” Redefined 20 Years Ago, and Belizeans Didn’t Know It!, AMANDALA(Aug. 17, 2016).) In Caleb Orozco v. The Attorney General of Belize, the claimant challenged the constitutional validity of section 53 of the Belize Criminal Code, insofar as “it operates to criminalize anal sex between two consenting male adults in private.” (Caleb Orozco v. The Attorney General of Belize et al., Claim No. 668 of 2010 (Aug. 10, 2016), § 2, Judiciary of Belize website.) Reportedly, Belize is the first Caribbean nation to declare such a provision unconstitutional. (Belczyk, supra.)
Claimant Caleb Orozco is a citizen of Belize “and by his own admission on oath, a homosexual adult male disposed to engaging in anal intercourse.” (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 17.) Orozco sought, among other relief, a declaration that section 53 of the Belize Criminal Code, Chapter 101, contravened his constitutional rights as protected in sections 3, 6, and 14 of the Belize Constitution and affirmed in its Preamble and is therefore “null and void and of no effect to the extent that it applies to carnal intercourse between persons.” (Id. ¶ 1.)
Section 53 states, “[e]very person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years. (Belize Criminal Code, Cap. 101 (as at Dec. 31, 2000), art. 53, Organization of American States website.) The claimant accordingly also sought that reference to “person” be removed from the provision. (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 1.)
The Constitution of Belize protects the right to dignity in the Preamble, fundamental freedoms in section 3 (in particular protection for family life, personal privacy, the privacy of one’s home and other property, and recognition of one’s human dignity, under 3c); the right to equal protection in section 6, and respect for private and family life and non-arbitrary subjection to unlawful interference with privacy in section 14. (Constitution of Belize (as in force on Mar. 1, 2012), Belize National Assembly website (click on download link to view text.) The claimant also invoked sections 11, 12, and 16 of the Constitution, on freedom of conscience, freedom of expression, and protection from discrimination, respectively. (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 6.)
Historical Background of the Offense
The ruling by Chief Justice Kenneth Benjamin contains an overview of the history of section 53. (Id. ¶¶ 7-12.) According to the ruling, English common law recognized “the crime of sodomy as an offence against God,” as mentioned in two treatises both written around 1300. (Id. ¶ 7.) Subsequently, the offense was tried in ecclesiastical courts, until 1533, when the crime of sodomy was reinstituted in secular courts and made punishable by death. (Id. ¶ 8.) It was later superseded by section 61 of the Offences Against the Person Act, 1861, in which the death penalty was replaced by a sentence imprisonment for life or a term of at least ten years. (Id.)
A Criminal Code drafted for the British Caribbean colonies and brought into force in Belize (British Honduras at the time) on December 15, 1888, provided for life imprisonment with hard labor, and for flogging at the court’s discretion, of anyone convicted of “unnatural carnal knowledge of any person, with force or without the consent of such person”; as the Justice points out, “[n]oticeably, buggery (with consent) and bestiality were classified separately as public nuisances.” (Id. ¶ 9.) This wording of the unnatural carnal knowledge offense was replaced in Ordinance No. 4 of 1944 with wording substantially similar to the present section 53; it removed the conditions of use of force and lack of consent and introduced the element of bestiality. (Id. ¶ 10.) Subsequently, consensual homosexual conduct was decriminalized in England and Wales with the adoption of the Sexual Offences Act 1967. (Id.)
According to Justice Benjamin, “the scope of section 53 has not been judicially explored within the jurisdiction of Belize,” and “[t]here is no known statutory or clear judicial definition of the terms ‘carnal intercourse’ or ‘against the order of nature.’” (Id. ¶ 13.)
The Judgment
Some highlights of the decision of Justice Benjamin are presented below.
- Standing
According to the court, “[t]he argument stripped bare was that the claimant must not only show that he is a homosexual but also that he is likely to be prosecuted.” (Id. ¶ 43.) In regard to the latter contention and the question of the claimant’s standing to bring suit, the court noted that in the case of Tan Eng Hong v. Attorney General, the Singapore Court of Appeal “rejected the proposition that a violation of constitutional rights can only be shown by a subsisting prosecution.” (Id. ¶ 50; 2012 SGCA 45, ¶ 184.) Based on that reasoning, Justice Benjamin stated, the claimant did “enjoy the requisite standing to bring the claim for constitutional redress.” (Caleb Orozco v. The Attorney General of Belize et al., supra.)
- Dignity
In regard to the issue of whether section 53 of the Criminal Code is inconsistent with the fundamental rights guaranteed to the claimant by the Constitution, the Justice acknowledged that human dignity is a concept that is hard to define. However, he disagreed with the submission of the defendant that the right to human dignity in section 3(c) of the Constitution is not enforceable pursuant to section 20 of the Constitution (on the enforceability of constitutional protections through petitioning the Supreme Court). (Id. ¶ 64.)
The claimant contended that section 53 was in breach of the right to recognition of his human dignity by:
(i) stigmatizing him as being a criminal by virtue of being a homosexual; and
(ii) categorizing consensual male homosexual acts in private with forced intercourse, sex with minors, and sex with animals. (Id. ¶ 65.)
The Justice concurred, stating, “[i]nasmuch as section 53 embraces acts involving both males and females the impact on the dignity of a homosexual man is disproportionate given the deep stigmatization caused by them being the primary targets.” (Id.) He held “that section 53 is in breach of the dignity of the claimant and in violation of section 3(c). Further, such breach operates to inform the other rights from which the concept of human dignity emanates.” (Id. ¶ 67.) He stated, moreover, “inasmuch as section 53 is framed in gender neutral language, the evidence demonstrates that it is discriminatory in its effect.” (Id. ¶ 92.)
- Extension of “Sex” to Include “Sexual Orientation”
Justice Benjamin extended the interpretation of “sex” in section 16(3) of the Constitution to include “sexual orientation,” noting that the United Nations Human Rights Committee held in Toonen v Australia Communication that “sex” in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) was to be interpreted as including sexual orientation. He pointed out that “this interpretation has been adopted by other UN Agencies and bodies” as well. (Id. ¶ 93; Toonen v Australia Communication, No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992, University of Minnesota Human Rights Library website; ICCPR (Dec. 16, 1966, in force on Mar. 23, 1976), Office of the United Nations High Commissioner for Human Rights website.) According to the Justice, because Belize had acceded to the ICCPR in 1996, two years after Toonen, “it can be argued that in doing so, it tacitly embraced the interpretation rendered by the UNHCR.” (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 94.)
- Inconsistency of Section 53 with Other Constitutional Rights
Finally, Justice Benjamin declared that section 53 of the Criminal Code “contravenes sections 3, 6, 12 and 16 of the Belize Constitution to the extent that it applies to carnal intercourse against the order of nature between persons.” (Id. ¶ 97.) He also expressed his willingness to adopt the suggestion in the written submission of the claimant that consensual private sexual acts between adults be excluded from the purview of section 53 and that the following sentence be added to section 53: “[t]his section shall not apply to consensual sexual acts between adults in private.” (Id. ¶ 99.)