Created on Friday, 02 Sep 2016 16:11:26

Frequently asked questions on the Belize case

Was Section 53 a buggery law?

  • No. It goes well beyond a prohibition of anal sex, which is typically the scope of a buggery law.
  • Section 53 has its origins in an 1887 law in Belize which criminalises carnal intercourse against the order of nature.
  • It covers sexual acts apart from vaginal sex that involve the male sex organ – thus criminalizing oral sex performed by a woman on a man, anal sex between a man and a woman, and the use of hands on the male organ

Was it an anti-gay law?

  • Historically this law focused on the type of sex (what was deemed unnatural) and not who was doing it. It applied to sex between males and females, and males and males, and males and animals.
  • While this offence has become symbolically associated with sex between men, its scope is wide and it can be applied to a multiplicity of sexual acts between heterosexual couples.

Did the judge create a new Law?

  • No, this case is one applying the Constitution of Belize, which is the highest or supreme law, to ordinary legislation which must be consistent with it.
  • If ordinary laws are not consistent with the Constitution, a judge can declare them void to the extent of the inconsistency.

What exactly did the judge decide?

  • The Chief Justice ruled that section 53 of the Belize Criminal Code was inconsistent with the Constitution to the extent that it criminalised sexual acts between consenting adults and that it could not stand as is.
  • He ruled that it violated the rights to dignity, privacy, freedom of expression, equal protection of the law and non-discrimination.
  • He considered whether the state had provided enough evidence to prove that public morality and public health were justifications for the law and concluded this burden has not been met.

Was Belize targeted as part of a sinister plot?

  • No. This case is one of ‘strategic litigation’ which simply means it was carefully thought through before initiated. This is a strength, not a weakness or malice, since careful evaluation and planning are critical to undertaking human rights litigation ethically. Typically the clients in strategic litigation cases stand in place for a much larger group of persons alleging breaches of their human rights.

Doesn't the decision mean gay people can have sex in public?

  • No. The first thing to remember is that s 53 criminalised not only sexual acts between men, but men and women.
  • There are laws related to indecency that address the public conduct of everyone.

Wasn't the case really about same sex marriage?

  • No it wasn’t.
  • The Belize Constitution in section 16(4), the antidiscrimination section, states that you can complain about a law that is discriminatory but makes an exception for laws related to marriage, among other things.
  • This provision in the Constitution precludes a challenge to the marriage laws in Belize on the ground that it is discriminatory.

Won't children be at risk with this decision?

  • No. There are other laws in Belize that address sexual violence against children.
  • In his judgment the Chief Justice simply excluded section 53 from applying to ‘consensual sexual acts between ADULTS in private’. This means that sexual acts ‘against the order of nature’ which involve children or which are committed in public are still criminal and can be prosecuted under section 53.

Can’t the same decision now happen in Jamaica and the rest of the Caribbean?

  • The courts in each country will have to evaluate cases before them based on their own Constitution. The Belize Constitution is not exactly the same as others in the Caribbean. This means it is not automatically relevant to other countries.
  • The decision of the Chief Justice of Belize is an important affirmation that all people fall within the scope of the Constitution and its human rights protections, regardless of sexual orientation, but it is the decision of a judge ‘at first instance’.

 

Published by: Caribbean Vulnerable Communities Coalition

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