Laws of Eve | Jamaica's buggery laws

The recently decided Belizean case of Caleb Orozco vs The Attorney General and Others Claim No. 668 of 2010 (Judgment delivered on August 10, 2016), concerned a challenge to the constitutional validity of Section 53 of the Belize Criminal Code in so far as it criminalises anal sex between two consenting male adults in private.

The case is of interest to all common law jurisdictions, since historically, the common law "recognised the crime of sodomy as an offence against God".

Importantly, the judgment expounded on the history of Section 53, and stated that although the draft criminal code that Belize adopted was also drafted for Jamaica, it was never adopted here.

'AGAINST NATURE'

In this case, all parties agreed that Section 53 criminalises sexual intercourse between consenting male adults in private as being "against the order of nature". Also, it was conceded that the interpretation did not only embrace homosexuals. It included anal intercourse between male and female and oral sex between consenting adults.

The claimant admitted under oath that he is "a homosexual adult male disposed to engaging in anal intercourse", and was, therefore, always at risk of being prosecuted under Section 53. He sued the Attorney General of Belize, and the action was joined by several interested parties, both for and against the claim. As an openly gay man, the claimant said that he has been the victim of violence, hostility, and discrimination; and he relied on a report that made the point that the fear of stigmatisation caused homosexual men to be reticent about seeking services for HIV/AIDS counselling and testing.

The judge made it clear that the claim was based on the interpretation of the Belizean Constitution and not an adjudication of a moral issue. On that basis, the argument by some parties that the issue was best left for the legislature was also rejected, and it was reiterated that the Supreme Court is the guardian of the Constitution and all fundamental human rights and freedoms.

Among other things, the Belize Constitution protects the right to human dignity, equal protection of the law without discrimination and freedom of expression. After reviewing the evidence and the submissions, the judge concluded that Section 53 contravened Sections 3, 6, 12, and 16 of the Constitution. Given the fact that the Constitution is the Supreme Law of Belize, any law that is inconsistent with the Constitution is void. For that reason, Section 53 of the Belize Criminal Code was, therefore, declared to be void to the extent that it applied to carnal intercourse against the order of nature between persons.

ADDITION

In order to bring that section in conformity with the Constitution, it was ordered that the following sentence be added: "This section shall not apply to consensual acts between adults in private." The defendant was also ordered to pay the claimant's costs.

It is left to be seen how this decision will shape the future of buggery laws in other common law jurisdictions.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.