Eamon Courtney, the lead attorney for the Churches, finished his presentation this morning. His argument explained why the Orozco challenge should be struck out of court.
After a 5 hour presentation, Courtenay briefly explained that thrust of his argument: that Orozco could not prove that any of his constitutional rights were violated because he’s never been prosecuted, and will likely never be prosecuted for his sexual preference.
Eamon Courtenay - SC - Attorney for the Churches
We are understanding of Mr. Orozco's position and in fact - Mr. Orozco should be praised for having raised this issue. The point is that he has raised it in the wrong forum. The court is not an academic institution, it is not a place where you come and ask for advisory opinions for example the International Court of Justice. You have to suffer a right, you have to suffer a prejudice and when that happens to you then you come to court. All the cases that were relied on by my learned friends except the ones that come from Singapore - I distinguish that because they don't have an equivalent to our section 20. They said that in that case the mere existence of the provision on the law is enough - they don't have section 20. Our section 20 says - very carefully that you have to have a right that is being contravene, is likely to be contravene, or has been contravened in relation to you. So it is not an academic question and if Mr. Orozco cannot prove that the police has threatened him, that they have arrested him, that there's a likelihood that he's going to be prosecuted or arrested or somehow prejudiced by this law then he cannot have standing. The proper place for him to seek redress is in the National Assembly - seeking to get the legislators to change the law on the matter. I made the submission to the court this morning that all the evidence from Mr. Orozco, all the evidence - document after document shows representations to the National Assembly asking them and the government to change the law.
Courtney told us that he can understand why that concern has arisen. According to him, it partly because the claimant’s case is unclear; it is not applying the strength it needs to qualify for a proper challenge in court.
"There case isn't clear. I pointed it out to the Chief Justice, in fact they have presented the court with four options. The one option they have not presented the court is striking down Section 53 completely so once that is off the table, the question is what type of sexual practices are constitutional and what are not? That is why they have to give the court four options to choose from. The point that we're making is once you move away from an absolute challenge to Section 53 and say to the court 'I am giving you a menu' and as an example I gave to the court - 'this is a very nice steak and how do you want it? Rare, medium rare, medium well or you want it well done?' They are giving four options to the chief justice asking him to choose how he likes his 'steak'. The constitution precludes that type of operation by a court. They should take those four options to the government, to the legislature and say 'we advocate for one or two or whichever' and have the legislature choose it."
And in relation to this issue, UNIBAM sent out a release yesterday in which it condemned all of abusive sexual behaviour, including all forms of rape and child molestation.
According to the organization, Section 53 is not the answer to male on male rape, and that there needs to be legislative reform on the rape laws to make them gender-neutral.
In relation to the challenge in court, Chief Justice Benjamin has reserved judgement for a date to be later announced.