Caleb Orozco v. Attorney General of Belize

The Claimant, Caleb Orozco, a citizen of Belize was a homosexual male and a health educator. In the Supreme Court of Belize, he challenged the constitutional validity of Section 53 of the Belize Criminal Code to the extent that it criminalized anal sex between two consenting male adults.

Section 53 of the Criminal Code stated “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 this section is that it includes anal sex between two consenting male adults. The Claimant argued that this interpretation violated a number of rights under the Constitution of Belize.

The Claimant contented that the Constitution of Belize protects the right to dignity under the Preamble and protects personal privacy, privacy of the home and human dignity as fundamental freedoms under Section 3 of the Constitution. It further recognises the right to equal protection under Section 6. Moreover, Article 14 provides protection against non-arbitrary or unlawful interference in private and family life. The claimant also invoked sections 11, 12, and 16 of the Constitution, on freedom of conscience, freedom of expression, and protection from discrimination, respectively.

The Claimant produced evidence that suggested criminalization of sex between consenting adult men resulted in serious harms. This included reports showing that gay men were less likely to report acts of violence or rapes for fear of lack of protection from the police and discrimination. Evidence suggested that gay men shunned testing and treatment of HIV/AIDS because of the stigma of being a gay man, which was reinforced by criminalization. He further produced expert reports, which showed that Belize had the highest prevalence of adult HIV among Central American countries. Further, the expert report debunked the theory that homosexuality is a mental disorder and stated that it is a part of the range of human sexuality and sexual expression.

The Supreme Court found that the Claimant had a standing to bring the claim and found that although few prosecutions were brought under Section 53, the Claimant perpetually ran the risk of being prosecuted by virtue of being a gay man who engaged in anal sex. The Court held that Section 53 of the Criminal Code contravene Sections 3, 6, 12, and 16 of the Constitution to the extent that it applies to sexual acts between consenting adults.

The Court further held that it had a standing to rule on this issue and rejected the argument that the matter represented a clash of worldviews and should therefore be left to the Legislature. Rather, it stated that this was an issue concerning alleged violations of the fundamental constitutional rights as opposed to a moral issue, and therefore it was the Court’s duty to rule on the issue and this duty is essential for the conservation of democracy.

The Court found that Section 53 of the Code violated the right to dignity of the human person protected by Section 3(c) of the Constitution. The Court found that gay men are degraded and devalued by a law punishing a form of sexual expression, making the law a violation of their dignity. The Court found that although the language of Section 53 was gender-neutral, it disproportionately impacted homosexual men.

The Court extended the interpretation of “sex” in Section 16(3) of the Constitution to include ‘sexual orientation’ noting that the UNHRC held in Toonen v Australia Communication that “sex” in articles 2 and 26 of the ICCPR was to be interpreted as including sexual orientation. He pointed out that international bodies and the United Nations had also embraced this interpretation. According to Justice Benjamin, as 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 UNHRC.”

The Court also found that Section 53 violated the right to equality, the right to freedom of expression and right to personal privacy protected by Sections 3, 6(1), 12 and 16 of the Constitution to the extent it criminalised private sexual activities between consenting adults. The criminalisation amounted to a breach of an individual’s right to express his sexual orientation. The Court found that the Claimant had been discriminated against on the basis of his sexual orientation, and there was no evidence to show that this discrimination was justifiable.

The Court finally ordered that that Section 53 be amended by adding that “this section shall not apply to consensual acts between adults in private”.

“The law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others… It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behavior.” (para 12)

“Criminalization and stigmatization not only perpetuate systematic discrimination and violence that limit the study of HIV risk for MSM [(men who have sex with men)]; they also restrict the extent to which health care providers can effectively offer and MSM can safely access health care services that would reduce HIV transmission and treat HIV infection. (Sullivan et al, 2012). Criminalization and stigmatization, therefore, complicate the health needs of MSM and act as severe barriers to individual country and global responses to the HIV epidemic.” (para 41)

“The… prohibition on sodomy criminalises all sexual intercourse per anum between men: regardless of the relationship of the couple who engage therein, of the age of such couple, of the place where it occurs, or indeed any other circumstance whatsoever... Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals… But the harm imposed by the criminal law is far more than symbolic. As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human.” (para 66)