The Human Rights Omissioner and the Freedom to Starve

commission

Of all the decisions of the last 100+ days, under the Abbott government, the decision by George Brandis to appoint Tim Wilson as the Human Rights Commissioner has hit hardest home. I think this act, more than most, exemplifies the ideological undercurrents of the current government. I interpret this as an incredibly symbolic act of the government that will define their political motif for the next three years.

I like to think of human rights as something of an expertise of mine, and there is something profoundly jarring about this appointment. I will not go into detail about some of the more obvious issues around this, as this has already been reported: including his former role with the Institute for Public Affairs and its desire to abolish the commission; including the underlying antagonism  between Wilson and the President of the Commission Professor Gillian Triggs (having met and interacted with both Wilson and Triggs, my read of that dialogue hints at a deeper animosity). I’m not even particularly bothered by his politics in a broad sense, and I will visit that idea later on.

Such a model will only serve to entrench those behaviours, and push the state and its use of force more towards an oppressive model of governance. It is an act of omission rather than commission.

Serving the State or the People

What I am most dismayed about is this one statement: “I am looking forward to the challenge of reasserting the importance of human rights and advancing the government’s freedom agenda,” made by him in this interview. In that one statement he has revealed a significant disconnection between how he understands the role and one of the nominal functions of that office.

The reason that this should be worrying is because human rights are principally doctrines of international law. They emerged because they sought to curtail the gross abuse of state power over the lives of their citizens in response to the horrors of the genocides of World War II. They are designed to keep a state government to account and to draw a line around what they can and cannot do towards their subjects. Pursuing the government’s agenda, and keeping the government in check are mutually exclusive tasks because they constitute a conflict of interest. So in that one statement, Wilson is effectively saying that he thinks his obligations are more to the state than they are to the people.

When questioned by Naomi Woodley about his recent appointment and his position on asylum seekers being detained in Manus Island and Papua New Guinea, he effectively brushed off the question and instead asserted his intention to repeal Section 18C of the Racial Discrimination Act. In that one statement he effectively noted that his first interests were not towards the thousands of people enduring inhumane living conditions, but seeks to support the interests of public officials who have reasonable levels of power to begin with. It is a clear example of his particular predilections aligning more with the interests of the governing elite than challenging the regimes they create.

It is a clear example of his particular predilections aligning more with the interests of the governing elite than challenging the regimes they create.

This is indicative of a government that is driven by its ideological assumptions. It has no interest in moderating its agenda because it seeks to profoundly change the political landscape to match the vision of its utopia. Time and time again, we are seeing the politics of minimalist government and retreat from the market, all in the name of waste cutting and freedom. It might be okay for an opposition to adhere strongly to its ideological guns, if only to challenge the government. However, it is a perilous position for a government to adopt because they must represent the entirety of the public, not just the ones that voted for them.

Minarchist Utopia

The reason this is very concerning is because states remain one of the most powerful institutions within modern society. They maintain a monopoly on the legitimate use of force, and so its notion of justice will often see how that state structures its many organs to maintain and provide for justice. The use of force in the Australian context defaults typically to police powers, and the limitations of their powers

Brandis has effectively stated that the appointment was specifically to change the politics of the commission, concerned that it had narrowed its agenda significantly. He noted that there would need to be an emphasis on the freedom to speech and the International Covenant on Civil and Political Rights (ICCPR). There was no mention of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is not surprising but it is troubling.

The ICCPR and the ICESCR are designed to be two halves of the same whole. The former is a doctrine designed to vaunt individual freedoms while the latter is a document designed to direct states towards providing the necessary welfare to achieve those rights. They are in fact the manifestation of the ideologies of the USA and the USSR brought together to create a more holistic doctrine of rights alongside the United Nations Declaration of Human Rights (together, all three are considered to be the International Bill of Human Rights).

It is entirely ironic that Brandis is touting Wilson because he will expand the agenda of the commission only by focusing it on one half of the discussion of rights. A commission that vaunt the ICCPR would emphasise the rights to physical integrity (right to life, freedom from torture, and slavery); rights of justice (presumption of innocence, procedural fairness, habeus corpus); individual liberties (freedom of movement, religion, thought, speech, assembly, association); and political rights. However, a commission that then also ignores or omits the ICESCR would overlook labour rights, social security, rights to family life (children’s rights, parental rights, and reproductive rights), standards of living (clothing, food, shelter, and water), public health, public education, and the right to participate in public life (art, culture, and science).

This is the classical libertarian playbook, promising freedom from unwanted state intervention and the freedom to starve. It is a paradise fit for become a paradise fit for Ayn Rand or Gina Rineheart.

Police Powers and Human Rights

Any rights-based organisation that aligns itself with the state tend towards a view that the role of government has a role of keeping the peace and not interfering with the lives of its private citizens. Libertarian visions of justice usually default to Nozick’s vision of the night-watchman state. It is a view that suggests that the proper use of the state monopoly on force must withdraw from the private affairs of people, meaning that the state should only interfere to restore the peace, to prevent violence, and to enforce the private contractual arrangements between its citizens.

Putting aside the issues of disproportionate bargaining capacity of individuals and corporations (or even powerful people), there is a very worrying issue in relation how a libertarian view would frame police powers, being solely towards the maintenance of law and order. Such a view would emphasise the role of the police as a para-military force, designed to subdue public dissent in the name of public order; particularly where that disorder interferes with the market. In such a situation, police powers are emphasise in any type of public action deemed disruptive, such as curtailing rights to protest in Tasmania, police breaking union blockades in Victoria, and police brutality at Mardi Gras in NSW. Not to mention Wilson’s attitudes on the Occupy Movement and their right to speech.

I have already spoken before about the distinctions between acts that are corrupt and acts that are oppressive in the context of police culture. A human rights commission that is shifted towards a more ‘law and order’ model of police culture, rather than a ‘police service’ type of model will be more permissible of patterns of violent behaviour as being acceptable in the name of the public interest. Such a model will only serve to entrench those behaviours, and push the state and its use of force more towards an oppressive model of governance. It is an act of omission rather than commission.

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Police Culture: Corruption or Oppression?

I propose to critique the institution of the police, particularly in their actions towards protecting vulnerable groups that as part of society. As part of this query, I will look towards specific examples of abuse of police powers with the intent to query whether those actions are indicative of a type of corruption, being examples of aberrant behaviour for the institution, or whether they are a type of oppression, being examples of behaviour normative of the institution itself.

In order to consider this question I will contrast a number of incidents in Australia and Russia. First, I will focus on a number of incidents during the 2013 Sydney Gay and Lesbian Mardi Gras festival, where police were accused of abusing police powers, including police brutality. Then, I will focus on Russia, where there exists a broad, loosely connected series of incidents that pertain to the treatment of LGBTI subjects in this jurisdiction following the legislation on a ban of ‘gay propaganda towards minors’.

I reference to the terms ‘corruption’ and ‘oppression’, with particularity. Though they are both contestable terms, as shown by Leys showing how the reality of corruption can be informed by context, and difficult to isolate with definitive rules or heuristics. For the purposes of this essay, it is sufficient to understand an idea of corruption as an abuse of police powers (this is elaborated on in the second section). On the other hand, I would contend that in the context of abuse directed towards a marginalised group in society, corruption and oppression may appear very similar in how they manifest. However, I consider a theory of oppression like that of Cudd, describing institutionally structured harm, perpetrated on social groups through a variety of direct and indirect forces (material, economic, and psychological). What I infer from models like Cudd’s is that oppression describes more of a systematic and pervasive expression of coercion and abuse, which has internalised and institutionalised the instrumentation of harm; contrasted to corruption which would signify and aberration of the norm.

By comparing these ideas, I propose a simple heuristic for assessing whether a type of abuse is more symptomatic of corruption (a perversion of a normative order) or of oppression (an expression of an institutionalised system of harm), with the former being characterised as acute and irregular, and the latter being chronic and pervasive. Using this heuristic, I will endeavour to demonstrate that the violence of Mardi Gras 2013 is acute and irregular while Russia is evidence of chronic and pervasive, thereby demonstrating a distinction between them.

Background of Incidents

It is not necessary to fully detail the incidents compared, only to provide an overview of police actions. However, I outline the violence experienced by LGBTI groups in both jurisdictions, and make inferences from their comparison.

During the Mardi Gras festival 2013, a number of incidents alleged police brutality and hostility several key events. The most visible was alleged police assault on Jamie Reed on the night of the parade, which was accompanied by a second alleged police assault against Bryn Hutchinson on the same night.

These incidents occurred within a broader range of alleged abuses of police power, particularly towards attendees of large dance parties. A sample of observed police conduct from the Inner City Legal Centre includes:

  • “police not giving warnings or following legal process before asking people about drugs in their possession”;
  • “police singling out stereotypical gay people and gender diverse people to search with dogs”;
  • “police placing hand on dog’s hind to encourage them to sit”; and
  • “dogs not giving any indication for a search but the police perusing the person regardless”.

Compare this to Russia, which gained international attention in passing legislation that banned the “propaganda of nontraditional [sic] sexual relations to minors“, followed by the rise of vigilantism towards LGBTI groups. Russian vigilante groups used social media to lure gay men into fake sexual encounters where they are promptly kidnapped and filmed being beaten, tortured, and humiliated; some reports indicated fatal casualties from these incidents. In recent months, there has been an arrest of a Dutch activist for discussing LGBTI rights in Russia, and violent encounters with LGBTI activists and their counter-protesters at LGBTI protests. Moreover, in many of these incidents, the police have seemingly failed to intervene adequately to prevent that violence.

Comparisons

The biggest difference between these jurisdictions is the source of the violence. In Australia, the source was from the police force: in Russia, the violence was the product of vigilantism, which the police failed to prevent. This describes two distinct caricatures of violence, as comprehended by the broader public. In the Australian context, these describe examples of an excess of power that has directly caused harm. In the Russian context, such incidents describe complicity by the police to allow pervasive harm to be applied. On this consideration alone, it would seem that the Australian incident describes an acute example while the Russian incidents describe a chronic example.

In Australia, the public response to the allegations of violence included protests and two separate investigations. Admittedly, some of this protest attribute the incidents of police violence to broader systematic form of violence, signified by the notorious “All Cops are Bastards” banner, but their voice is not necessarily indicative of the community.

The Russian depiction is starkly different, with a number of descriptions that speak to a growing hostility in Russia towards LGBTI persons, including statements by Russian citizens stating that it has “becom[e] dangerous on the streets” and that “[o]rdinary people consider [homosexuals] criminals”, as well as other comments that create a picture by sound-bites of a traditional population compounding a persecution of LGBTI people with a fear of the West (see here for those quotes).

These comparisons conform my own earlier research (from my own Masters thesis), where I contended that legal regimes in the West have come to frame their LGBTI subjects as minorities entitled with civic rights, contrasted with jurisdictions that reject/oppose Western political hegemony. Under these regimes, LGBTI subjects are characterised as politically dissident and sick, such that:

“attempt[s] to create rights for queer subjects must reconcile itself with the structures of power and agency that produce identity… [and that] … systems of power can alienate and marginalise ‘dissonant’ identities”.

These relationships become immensely important when considering the state’s disposition to a vulnerable group. My earlier research compared the characterisation of LGBTI citizens in different types of statehood. I synthesised the position of a number of international commentators, which observed that a large number of nations were increasingly challenged to reformulate their models of statehood with the fall of the Soviet Union (and the end of bipolarity). Emerging nations needed to emulate Western paradigms for political legitimacy, whilst simultaneously attempting to distinguish a national identity that was distinctive enough from the West. This dichotomy produced a number of states that sought to impose strong statist models, and a consequence of those changes included regulations of sexual and gendered behaviour, emphasising family model that repressed any sexual dissidence. Citizenship emphasised allegiance nationalist symbolism, military-patriarchal power hierarchies that encouraged homosocial bonding but homosexual repression.

Police Culture

Having compared the set of incidents, I now enquire directly into police culture. To do so, I will outline some of the theories of the function of police forces and standard models of police culture, while recognising those critiques. In doing so, I hope to provide a framework of understanding the institutionalism of the police, and from this position consider whether the incidents can be considered irregular or pervasive.

I first ground my argument within a theoretical understanding of the role of the police. I refer to a Weberian model of the state, and its proposed monopoly on the legitimate use of force. In doing so, I argue that the police force serves as an ancillary body of the State, being both legitimised and authorised to use force for the purposes of enforcing the law and maintaining of civil order. In this manner, police corruption can be seen as irregular if it constitutes a breakdown of the normal preservation of law and order. They become oppressive when they are part of an institutionalised breakdown of the same.

Standard Model of Police Culture

In Australia public order is frequently mediated by discretionary police powers: police are vested with discretion on “whether (and how) to investigate a reported crime, which method of initiating proceeding to adopt, whether to detain after arrest, whether or not to grant bail (in most cases), whether or not to charge, what to charge with, and so on” (see pp. 746-747 of this book). I would contend that the use of discretionary powers become a means by which we can understand the norms of police culture. So if the alleged acts of violence by the police are extraordinary use of police power rather than normative misuse they would indicate corruption rather than oppression (and vice versa).

To that end, consider the standard model of police culture, which originated with the works of Wesley where:
“[h]e gave a detailed, vivid description of an organization that operated in a context that was often experienced as hostile. This contributed to isolation, self-protection, secrecy and internal solidarity – all seen as central values among the police officers. This is why they often closed ranks against the outside world” (p. 60 from here).

Academic inquiry has refined this departure point through subsequent studies and synthesised a new standard model of police culture. This updated model characterised police culture being possessed of a sense of mission leading to direct action, which is juxtaposed by a sense of cynicism and suspicion of outsiders, such as the citizenry. This characterisation elaborates on Wesley’s observations, depicting a siege mentality buffeted by strong internal solidarity, even over breaches of rules and regulations.

Russian Police Enforcement

In Russia, the base presumption of police culture seems to have shifted someone. Gerber and Mendelson consider Russian police culture and its intersection with corruption. Rather than a siege mentality as outlined above, they provide a concept of ‘predatory policing’, which “occurs where police officers mainly use their authority to advance their own material interests rather than to fight crime or protect the interests of elites”. They conclude that “[p]ublic encounters with police corruption are at least as common as experiences with police violence, and both are widespread”.

Semukhina and Reynolds provide a comprehensive book titled Understanding the Modern Russian Police. A significant part of their work reviews the pervasiveness of police corruption, and the way they frame the issue describes it in very ubiquitous manner to the point where it is necessary to produce theoretical positions to explain it. Of these positions, they outline four dominant explanations, which include:

  • a persistence of historical Soviet practices of bribery into the modern Russian police institution, where personal favours were exchanged for consumer goods during a period of commodity scarcity;
  • a consequent of deteriorating social and economic disruptions experienced caused by the collapse of the Soviet Union, and maturing interconnections between former Soviet government officials and organised crime syndicates;
  • a ‘business of corruption’, where corrupt conduct is normalised, and rationalised with arguments that the costs of proper anti-corruption are higher and more riskier; all exacerbated by widespread poverty; and
  • a larger cultural phenomenon within Russia, of pervasive disrespect for the law and broad public tolerance for corruption.

Regardless of which view is taken, they all collectively describe a picture of police corruption that is widespread and affected by deeply problematic socio-economic issues. In fact, an emphasis of structural problems more strongly highlights the views expressed in the second point, which argues that there has been an increased hierarchical organisation, centralisation, and extreme militarisation of the police force; all having led to a lack of independent oversight of police powers and activity. Specifically, the main institution charged with supervising the legality of conduct, the Procuracy, is an adjunct of the criminal police: international reviews of the Procuracy have revealed low levels of confidence in their ability to fight corruption.

Comparisons

What these comparisons show is that despite the Russian and Australian police forces exhibiting a similar societal role, they can manifest significantly different institutional norms. It is to this that it is necessary to consider a number of criticisms of this standard model, citing the standard model’s claims of homogeneity or emphases on problematic police behaviours.

A particularly relevant critical position is Chan, who argues that police culture is the result of “the interaction between the socio-political context of police work and various dimensions of police organizational [sic] knowledge”. She contends that any model of police culture should:

  • account for multiple internal institutional perspectives;
  • recognise the active role that police officers have in being interpreting and producing that culture;
  • be able to consider the culture within broader socio-political contexts; and
  • include formulations for the acceptance and resistance to cultural changes.

This conforms to my earlier claim that the nature and stability of the state has a deep influence on the integrity of a police culture, and whether an act of corruption is institutional or aberrant. Moreover, Terpstra and Schaap earlier critques includes Chan’s critiques and eventually conclude that many of the descriptive characteristics of the police culture model, as well as the individualistic police behaviours, shift significantly in the broader socio-political context of the state norms that their force serves.

Given these positions and a comparison of Australian and Russian police cultures, it follows that there is a strong argument for the incidents of Mardi Gras 2013 to be acute incidents that are not part of a normative police culture in Australia; it follows that the conduct and actions of the Russian police are located within a comparison, it would follow a point of evidence that conforms to my original premise that particular incidents of police conduct can be understood as acute or chronic in reflection to systemic and pervasive views that inform police conduct.

Conclusions

I have compared a set of incidents in both Australia and in Russia. I have sought to determine whether, given the context of the police culture and statehood, if these incidents could be understood as either acute and irregular or chronic and pervasion.

In the instance of Mardi Gras 2013, the incidents, while not the first of their kind in Australia, do not seem to be rooted within a broader framework of police violence and hostility. While they could indicate the beginnings of a pervasive approach, they currently seem isolated, making them acute incidents. Moreover, the standard model of police culture, which is normative for Anglo-American institutes, would indicate that despite a siege mentality such conduct is irregular. In this sense, I would characterise the allegations of Mardi Gras as an example of corruption, in the sense they are a perversion of the norm.

In the instance of Russian, the incidents of violence are partly attributable to the complicity of the police, which are continuing and repeated; the police only seeming to respond to prosecute vigilantism after international attention. Moreover, these incidents exist within a broader context of state-persecution of LGBTI subjects, and a broad culture of Russian police corruption that is itself regarded as widespread and pervasion. In this sense, I would characterise the issues reported in Russia as an example of oppression, in the sense that they are systematically entrenched and internalised into police culture.

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Cutting the Umbilical Cord Between Church and State

AngelusProtesr

This Thursday, I will be participating in a protest before the NSW State Parliament, where a bill is being proposed that would make amendments to the Crimes Act, called the Crimes Amendment (Zoe’s Law) Bill 2013 (No. 2). It is euphemistically called Zoe’s Law (2) because it refers to the tragedy of the posthumously named Zoe, and is the second time a variant of this bill has been introduced to NSW Parliament. The substantive feature of this law would be the recognition of legal personhood of a foetus. This shift in legal definitions has a number of effects, which would significantly impact women’s rights, particularly around issues of child-birthing and bodily autonomy.

Although this is an issue I am profoundly passionate about, I had until now refrained from commenting. Partly because I do not identify as a woman, but also because far better women commentators were already weighing in on the issue and I feel I have an obligation to hear their view points before I formulate/refine my own.

However, the protest is drawing nigh and I was roused to significant anger this morning when it seemed that NSW Parliament were going to debate the bill today (until it wasn’t). To that end, I wanted to comment on the matter, not from viewpoint of being a feminist (even though I count myself as one), but as a legal scholar. I therefore seek to address the fundamental question at the heart of this challenge, which depends on the point at which the law recognises a subject as a legal person.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

Outline of Zoe’s Law (2)

To outline exactly what the law would do, I refer to statements made in the Bill’s first reading, as introduced by Mr Chris Spence MP, as well as a statement provided by the mother of the eponymous Zoe.

The object of the bill is to amend the Crimes Act 1900 to recognise the existence of the foetus of a pregnant woman that is of at least 20 weeks gestation so that proceedings for certain offences relating to grievous bodily harm may be brought against an offender who causes the unlawful destruction of or harm to any such foetus as proceedings for grievous bodily harm to the foetus rather than proceedings for grievous bodily harm to the pregnant woman.

The above is the opening paragraph of Mr Spence’s first reading of the bill. He goes on to note that the bill as introduced is a refinement of the original bill submitted by Fred Nile, in that it would exempt any offences that would occur in the “course of a medical procedure, including medical treatment or anything done by or with the consent of the pregnant woman that causes harm to or the destruction of a foetus” and does not intend to impact upon a woman’s right to choose.

However, the very specific aspect of the amendment is schedule 1 [2] of the bill, which states:

For the purposes of the proposed section, an unborn child that is taken to be a living person for the purposes of applicable offences, is defined as a foetus of at least 20 weeks gestation or, if that cannot be reliably established, a foetus that weighs at least 400 grams (proposed section 8A (1) and (2)).

It specifically states that the intention of the amendment is to enable the law to recognise an unborn child as a living person, for the purpose of a range of applicable offences. Mr Spence claims that it would not create new categories of crime, but rather focus on the crimes of grievous bodily harm that are currently relevant to injury toward a foetus.

There have been some preliminary responses from a variety of legal experts who have expressed concern and dissent to these intentions of the bill. Roughly speaking, a variety of legal organisations and experts (except for lawyers known for being anti-abortion) have been consulted and come to an opinion that it is something of a Trojan horse for women’s choices. There is a legal conceit in Zoe’s Law (2), in that while it allows for exemptions from medical procedures that women choose to undergo (such as the termination of a foetus), the passing of this bill would nonetheless establish the legal category of “foetal personhood”. It would instate that foetus with a series of protected rights that would potentially come up by virtue of the fact that this foetus is now viewed as a separate legal entity.

One of the comments regarding this conceit is that because this entity would not technically have a category until the passing of the bill, it has not been included in any of the pre-bill analysis of the bill’s proponents. It is this exact same pattern that equivalent bills in the USA used to be passed as legislation. It is why such bills are being advocated for by anti-choice veterans like Fred Nile and current Attorney-General and former ‘Right To Life’ president Greg Smith. Among those, I would direct you to the responses written up in this article by Jabour in the Guardian.

For a good grounding in the background of the current legislative provisions as they apply around the legal recognition of the personhood of children being born, and how they intersect with crimes like manslaughter, I refer you to the review by the Judicial Commission of New South Wales.

Donegan’s Appeal and Legal Reasoning

One of the things that is seen as particularly compelling in this case is the public appeal by Brodie Donegan, which is regarded as convincing because Donegan is a self-professed pro-choice mother. In her view (and as articulated in the amendment), the provisions of the amendment would still protect women’s choices.

Rather than refer to specific passages of Donegan’s appeal, I will simply outline that it describes the way that Donegan experienced a highly traumatic event, and that Donegan ‘s experience of the still birth was one akin to having lost a fully realised child. A lot of her language speaks to visceral memories that are undoubtedly painful and extremely difficult to reconcile. That this loss has taken place in the context of an accident would likely exacerbate those memories and experiences. To these I can only sympathise with, even while I have no significant frame of reference to empathise with.

However, as a legal scholar, I am required to step back from these subjective experiences and ask whether these experiences should formulate a dimension of criminality. The important question being asked is not whether there is validity to Donegan’s claim or experiences, but whether these experiences speak to a significant truth or aspect of our society as a generalisation. While this bill would not directly seek to create new crimes, per se, it does expand the way existing criminal legislation interacts with unborn children.

The reason I treat this issue with some measure of skepticism is because to consider an issue before law it is necessary to identify what the relevant questions of fact are, as well as those questions of law. In the account detailed above by Donegan we see references being made to the fact these events occurred on Christmas Day, the interactions between the unborn child and he potential sister. All of these are appeals to emotion, designed to qualify the experience beyond a tragic accident where an unborn child was stillborn. If they are relevant facts, than any law that is made in response to them would need to include ‘happening on Christmas Day’ or ‘the unborn child had siblings’ as conditional aspects before the law became relevant. They are understandably personally relevant to the family in question, but legal reasoning must remain agnostic to them.

My argument against this amendment does not depend on this fact, because it would be disingenuous to do so. Clearly the arguments for this bill do not entirely turn on these issues, but they add an undercurrent personalisation that I think only serve to muddy the discussion. These are incredibly significant issues and cannot be resolved through emotional appeals.

The Autonomy of Being

The substantive basis for these types of claims, and in fact the point to which Donegan points to as the point at which this law should kick into effect, relates to the fact that currently levels of medical technologies can enable a foetus at 23 weeks to become a viable baby outside the womb. Proponents of the law will point to the status of a foetus at 20+ weeks, to indicate that they should be reasonably recognised as a separate body (see this video as an example).

In a first glance, it might make common sense to regard these entities as living persons. They share all of the apparent characteristics of babies, and can be made as a viable separate entity. It is around this particular test that the idea of the ‘born alive rule’ emerges, which is the legal test applied to births to determine whether the birth should be recognised as having personhood. It currently holds that a birthed human being becomes a legal person when they are able to breath independently from the mother, even if that breathing is machine assisted.

It is to this idea that the challenge of Zoe’s Law is levelled, reasoning that since technology can enable a foetus to survive at increasingly earlier stages, we should recognise earlier stages as being potentially viable. This is a false equivocation, because the born alive rule is a test applied after birth, irrespective of the period of gestation. Its premise is to identify viability after the fact, not seek to pre-empty viability in potential. For an extremely excellent academic response to this kind of challenge, I would refer you to Kristen Savell’s article in the Sydney Law Review.

She concludes that:

“the law should resist pressures to enlarge its understanding of personhood on the basis of some straightforward analogy between late-term foetuses and newborn infants. The comparable intrinsic properties of late-foetuses and newborns is not alone sufficient to warrant the ascription of legal personhood to foetuses. The conditions that make late-term foetuses resemble persons certainly include intrinsic properties but, until the foetus achieves separation, they also include the investments and attachments of the mother. Foetuses cannot become actively embedded in a social matrix and, to the extent that the foetus becomes situated in a web of relationships, this is only achieved through its mother. However, after birth the baby can become actively embedded in a social matrix irrespective of its mother. It is in this sense that the experience of individuated embodiment has substantive significance.”

What this means, and what I wholeheartedly agree with is the rebuttal that just because a foetus has the outward appearance of a natal child does not mean it should be entitled with the full suite of human rights. What I find inherently troubling by this particular line of reasoning is that it attributes personhood towards a body, but this says nothing about the really thorny question of whether that foetus has consciousness, or bears many other signifiers of socialisation that are also intrinsic qualities of being human. To ascribe those social qualities onto a foetus before it has become actualised as an independent person is premature (please excuse the pun, but I cannot find a better synonym).

Legal Construction of Personhood

From a much more broader theoretical perspective, I am deeply troubled by some of the implications of recognising personhood for any foetus that has not yet achieved independent existence from its mother. This is largely due to the way that the legal system interacts with medical bodies of knowledge, particularly around matters that have criminality attached, but are often insulated from sociological considerations, which specifically investigate questions of identity and personhood in terms of its meaning to society.

The very notion of legal personhood is a rather difficult one, because the legal system has taken what we consider to be rather essential elements of being and framed them into highly discreet categories. The problem is that our lived experiences and the realities of being a full actualised human are not able to be reduced so easily. Personhood is actually a complex of various socio-legal boundaries, each of which circumscribes a certain kind of social space with legal provisions. Each boundary represents some ideal of personhood or individuality, which is then framed as some kind of real thing. While I describe four spheres of personhood in this model, I will mention only the inner-most two as I consider they are the ones truly relevant when discussing this matter.

The innermost sphere describes those qualities of personhood we might regard as the ego, and here the Anglo-American tradition of law protects our rights to hold beliefs and ideas, and otherwise protect against psychological injury. The second boundary is effectively equated our body, and while the body encompasses the ego, the laws relevant to this boundary protect individuals against unlawful medical intervention, battery, and other violations of our bodily autonomy. There are other dimensions beyond this, which relate to matters like privacy, property, and other areas of our civil and legal personhood, but since most of those are not relevant for this discussion I won’t detail them. Suffice it to say, the notion of personhood is already mutable, and recognising the existence of a legal person that still exists within and is dependent upon another person for their existence causes a direct conflict of rights that is incredibly difficult to reconsile.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

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Beyond Binaries

Today’s article is actually a policy brief on some recent changes in the Sex Discrimination Act (Cth) in Australia. This brief has been prepared for business and other organisations, with a view to give them some grounding on the legislative changes so that they might be able to affect best practice and avoid causing both direct and indirect discrimination.

You can download the brief here:

Beyond Binaries

You are welcome to share this document, but I would prefer if you would link back to this site as the source.

The politics of neutrality in the Olympics

A new development around the issue of the Sochi Winter Olympics has made me feel obliged to provide a followup note to the one I wrote last week. Specifically, an article released recently by Huffington Post makes the bold assertion that the International Olympic Committee’s position may “Join Russia in Punishing Gay Athletes“. To unpack this properly, it is necessary to refer to a few salient points already covered in the original article, outlining the formal position of the IOC and Russia.

The question of whether the IOC can be considered punishing its queer athletes for protesting is a tricky one, and it really comes down to how you interpret the actions of the IOC. In order to highlight some of these issues I will play the devil’s advocate and advance a line of thinking that I believe the IOC is taking, which do not necessarily reflect my own. In essence, the IOC has stated that they are intending to remain neutral on this issue, or, as they describe it, apolitical.

I don’t agree with the position that the IOC’s stance is neutral, even if it is one constrained by its own governance and regulations, and not explicitly mandated by its principles.

The Position of the IOC

The increased visibility, public concern, and even international diplomatic pressure has prompted the IOC to repudiate these laws. Their principle formal action has been to solicit assurances from Russia that their athletes and visitors will be exempt from these laws. The response has been a little disconcerting, if not predictable. Sports Minister Vitaly Mutko and Russia’s Interior Ministry have both confirmed that they will be enforcing those laws upon athletes and visitors, during the Olympics Games at Sochi.

Perhaps this interaction might be described as insufficient on the parts of the IOC, and may even serve as the basis to actually boycott Sochi as the site of the Winter Olympics. Hosting either the Summer or Winter Olympics games a half-decade projects, and I suspect there is far to much momentum (economically and politically) to change the site of the games at the eleventh hour. A decision to relocate the games is actually less likely to occur at this stage of the organising than cancelling them all together. There are simply far too many vested commercial and sporting interests for those calls to achieve much change (unless some significant and formidable diplomatic event happened like a formal sanction by a series of major nation-states).

It can also be argued that the admissibility of the persecution of these minorities are in contravention of the fundamental principles of Olympianism…

It is possible to argue that there is a conflict between the basic human rights at play, the principles of Olympianism, and the manner in which the Russian laws criminalise LGBTI subjects (or rather the practice around them). It can also be argued that the admissibility of the persecution of these minorities are in contravention of the fundamental principles of Olympianism, including “Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example and respect for
universal fundamental ethical principles” (Rule 1), and “promoting a peaceful society concerned with the preservation of human dignity” (Rule 2), and more importantly “Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement” (Rule 5). Importantly, note the conspicuous absence of any mention to LGBTI minorities within that remit against discrimination, which is itself unsurprising. It simply reflects a contested position in international relations regarding whether to recognise sexual orientation and gender identity (the legal terms used internationally) under the rubrics of human rights and international law. Moreover, it is a subtle indication of a long and fraught modern history of LGBTI people within international sport and the inordinate normative pressure not to be visible or public.

First, consider the Olympic Charter, which contains the fundamental rules and by-laws of the Olympics and is the governing document that the IOC is beholden to. While they contain the governing rules for the National Organising Committee of a host city, they have no extra-legal powers over the sovereign laws of a host nation. Specifically, the Charter requires the IOC and National Committee to uphold the laws of the host nation as an event that exists subordinate to the nation’s regime. Finally, as far as the IOC is concerned, the competition is between individuals, not nations, and must make a separation between the athletes competing as part of their event, and the issue of individuals being subject to a nation-state. This is fundamental for an event like the Olympics to maintain and uphold a significant international presence that has credibility to as many nations as possible, which is dependent on the appearance of neutrality, particularly on potentially contentious issues.

So even though this described a conflict of interests between upholding the principled values of Olympianism and respecting the sovereign status of nation states, it is not without precedent. In 2012 the IOC assumed a rather conservative approach to responding to domestic issues, refusing to ban the entry of Saudi Arabia’s athletes into the 2012 Summer Olympics after Human Rights Watch outlined the prevention of that nation from permitting female athletes to participate. This is consistent with their position on the issue of Sochi, because Rule 50 of IOC’s charter prohibits any “… kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas,” and was affirmed by the IOC in stating that “the IOC has a clear rule laid out in the Olympic Charter (Rule 50) which states that the venues of the Olympic Games are not a place for proactive political or religious demonstration. This rule has been in place for many years and applied when necessary”.

Displays of Dissent

This brings the issue back to supporting visible protests that occur on the ground in Sochi; whether they come from locals, visiting athletes, or tourists. It is this scenario that interests me the most, because it contains so many graduations of uncertainty and legal ambiguity, particularly in light of the high number of extra-legal actions taken by Russian antagonists, combined with the absence of police response. It is around this issue that I think the IOC ceases to be neutral and starts to become political. If only because here the room for social, political, and legal interpretation is much more ambiguous and allows the IOC to take a more affirmative (or not) position on an issue.

There are several prominent LGBTI athletes stating that they will express their political dissent while in attendance, and the question remains how with the IOC (let alone Russia) respond to these acts, and which ones; also how will it respond to legal charges laid against its athletes. The most blatant potential protest is presented by New Zealand speed skater Blake Skjellerup’s pledge to wear a rainbow pin, as well as Johnny Weir’s pledge to attend in similar fashion. Considering that the conduct and behaviour of athletes is governed by the rules and regulations of the Olympic Charter, which requires compliance with domestic laws, there is a potential double jeopardy for Olympic athletes that might include both criminalisation as well as possible Olympic disqualification.

Defining a Public Act

A significant part of this comes down to how Russia decides to construe the notion of propaganda, towards the various degrees of dissent expressed. On the matter of public demonstrations and protests on the streets, I am certain this would likely trigger a response from the Russian authorities, even if included Olympic tourists and visitors. This would be likely viewed as a disturbance of the peace and possibly even a security threat to the Olympic games. For an interesting and succinct dissection on the difference between what the laws say and their practice, I refer you to Kevin Child’s short article.

The crux of the laws is that they focus on propagandising non-traditional relationships towards children, but aren’t implicitly anti-homosexual. It is this absurd little loop-hole that gives Putin ability to claim that Russia does not actually have laws prohibiting same-sex activity but also gives a broad mandate of actions and symbols that their police force can respond to, namely public acts that are seen to promote non-traditional lifestyles.

There is a very thin line between visible queer athletes making public displays of (homosexual) affection being seen as normal, and the view that such behaviour presented as normal be considered as propagandising to minors.

A public speech-act has three broad categories, the first being any statement, written or spoken, that is put deliberately into the public domain; the second being the visible display in public of any sign (pictographic or gesticulated); and the third being the public propagation of information. All three categories broadly encompass some positive act that promotes or places an idea into the public sphere, with broadcast media being the most obvious example, but is also inclusive of any speech-act that could be recognised as being made public by the intentional accessibility to public attention, or is otherwise construed as being public by its form or format. There is a very thin line between visible queer athletes making public displays of (homosexual) affection being seen as normal, and the view that such behaviour presented as normal be considered as propagandising to minors.

As the American foreign office has positions a strong condemnation of Sochi, let us first consider their socio-legal paradigm on such matters. In the US, both culturally and legally, there is a strong tendency towards a notion of free speech that is absolute, albeit incompletely so; merely deeply entrenched politically and legally. Theirs is a distinction between between regulating the content of speech and regulating the deleterious effects of speech with harmful effects (defamation, intentional infliction of emotional duress, and incitement to violence/riot). The US has allowed limited restraints on the latter.

More generally, free speech can be more defined as the freedom of expression, including any public speech-act that presents a political statement (silent vigils, black armbands, or rainbow pins). In this context, freedom of speech is not merely a negative right (a right to prevent limitations on free speech), but the active protection of free speech by countering those social elements that seek to stifle expression. What we can see from this very limited discourse is that the type of speech-act that can be considered to be a type of propaganda can be very broad indeed, and given the increasing proliferation of the framing of this issue as being ‘homorealistic‘ I think there is a very real chance that Russia will begin to contextualise most forms of homosexual speech-acts under this rubric.

A Potentially Volatile Olympics

I think there is a potential for the Sochi Olympics, to set the stage for a rather incendiary spectacle. In particular, the Olympic village is an especially sexually charged environment, with many hypersexually active individuals at the peak of their physical fitness. There is likely to be a huge convergence of a number of incredibly politicised issues, including the significant cross-over between the pathologisation under public health and the criminalisation of sexual dissidents.

However, the presence of the Olympic Games over Sochi creates a very interesting set of issues under international law. The sheer presence of the Olympic Games inevitably causes an intensification of the international system onto Sochi, and probably gives greater credence to the space being subject to international norms beyond the scope usually assumed by signing conventions. The huge international pressure to avoid a diplomatic incident may be the principle force keeping the potential volatility contained.

Ultimately, I don’t agree with the position that the IOC’s stance is neutral, even if it is one constrained by its own governance and regulations, and not explicitly mandated by its principles. I think it reflects a tacit conservatism, largely bouyed by the incredible inertia the Olympic Games possess. My principle concern is the aftermath of the Olympics, as Sydney describes at least one city where increased police powers were put in place for the Summer Olympics, but then never rescinded. That increased powers may linger after the games, and the LGBTI may be its ultimate ‘beneficiary’.

From Russia With L̶o̶v̶e̶

It is very easy to mistake what is happening in Russia as something unique, but it actually represents one of many international issues for LGBTI people. That this one captures our attention, as opposed to any of the others, deserves some contemplation. The magnitude of this issue cannot be understated, and for many it is overwhelming. To completely convey the scope of these issues is not something possible within a single article. However, I will attempt to synthesise their disparate elements to give them some context.

One of the factors at play in the way we attend to these issues, is the issue of cultural capital. That is, the plight of certain people resonates more strongly with us than those of others, by sheer dint of the fact that there exists a common cultural narrative. Granted, a former-Soviet Russia entails a history that diverges from the West somewhat, compared to the common history of other former British colonies (of which Uganda is one). However, Russia is still a European nation, and so the plight of its people is more likely to resonate with the West, than say the plight of those in the Middle-East, Africa, or Asia.

However, it would be remiss of me to ignore the impact of the Winter Olympic Games: it entails a global force that is undoubtedly bringing inordinate levels of global scrutiny upon these issues. If only because of the immense influence the Olympics holds, financially, symbolically, and politically. Indeed, in order for the hosting city to host the games, they must establish an agreement with IOC to allow expanded police powers. It happened in Sydney (the civil liberties curtailed have never been repealed), and London. So given that Russia will not suspend these laws for the Winter Olympics, we are likely to see an exacerbation of police brutality and repression of political dissidence in this arena.

Silence is complicity, which leads to death, torture, and greater rights violations.

Coming In From the Cold

Context aside, this still doesn’t get us anywhere closer to solving the problems on the ground in Russia. Even setting aside the complexities of global politics, there is a sense of immensity in challenging one of the largest and most powerful nations in the world. Probably one of the more ominous aspects of this shift in politics is the actions of civilians on this issue, having lead to the incidents of extra-legal action designed to torture and humiliate gay youths in a rather systematic fashion. The laws are being permissible of this conduct, particularly since the Russian authorities are not responding to such conduct. Sadly, these types of actions falls outside of the purview of human rights, because they are the domain of criminal law instead. So until the Russian Federation enforces these crimes, there is little to no formal mechanism under human rights law that can respond to them.

Likewise, there is almost no shortage on commentary on how we are to respond to this particular issue, as well as vast discussion what instruments to use from our repertoire of contention: from boycotting Sochi (or not), to standing with the Olympic athletes; to various demonstrations outside Russian Embassies and Consulates in San Fransisco, in Vancouver, in New York; as well as such calls to action like Stephen Fry’s highly evocative letter, to Dan Savage’s call to boycott and why this might be a bad idea; as well as Madonna’s more overt form of outspoken condemnation and Tilda Swinton’s more subversive dissent.

However, in spite of the significance of these actions, other nations have equally hostile political climates, which are potentially even worse: there are still detention camps for sexual dissidents (among others) in Greece; the death penalty still hangs like the Sword of Damocles over Uganda; and there are still no homosexuals in Iran. What we see is a trend in Eastern Europe, as even as recently as two days ago, there was a report of Armenian Police proposing a ‘Gay Propaganda’ ban, like in Russia.

How I Learned to Stop Worrying and Love the Bomb

There is no small coincidence that the push for LGBTI human rights by Western advocates has been met with a virulent backlash from nations outside the West. Their entanglement with globalisation has contributed to the perception that LGBTI civil liberties as being synonymous with Western imperialism.

What is happening in Russia, Greece, Uganda, and Iran, to name but a few, are all symptoms of a world struggling to find a place for a highly dissident and subversive set of communities, all loosely affiliated across the globe. So yes, they constitute incredibly blatant breaches of human rights, but at least the Global North is finally reconciling with the issue that they are human rights issues – mostly.

In the past decade, the spectrum of LGBTI minorities falling under the purview of human rights starts after half a century of resilient silence. This change is in no small part due to the Declaration of Montreal (2006) and the Yogyakarta Principles (2006), which formally articulated a vast range of issues affecting these minorities from many parts of the globe. Yet, despite their formulation, the advocacy of LGBTI human rights remains inescapably Western. Partly, because human rights emerged as a Western phenomenon and partly because LGBTI (as both a sense of identity and community) has an equally Western origin. Moreover, both have been exported to spaces outside of the West along the same lines as the forces of globalisation.

It is no small coincidence that the push for LGBTI human rights by Western advocates has been met with a backlash from nations outside the West. Their entanglement with globalisation has contributed to the perception that LGBTI civil liberties as being synonymous with Western imperialism.

The Grecian Question

… and then there is Greece. As an ostensibly Western nation, it seems puzzling that it doesn’t generate as much attention as it should. In the last few months, there has been an increasing series of problems affecting a number of vulnerable minorities in Greece. This includes instating powers to arrest and detain people who are suspected of being HIV+ and forcing them to undergo testing under the mantra of public health. Admittedly, HIV rates have skyrocketed since 2011, but there is a strong correlation between this issue and the closure of public health services as a result of austerity measures.

However, that doesn’t seem to help explain the lack of attention to the Grecian issue, whose European legacy is one of the foundations to Europe. The seeming contradiction of the West’s attention to Greece may actually speak to a certain readiness to respond to the torture and deaths of gay youths by Neo-Nazis, rather than to respond to the concentration of trans people, sex workers, and HIV+ people: they are both subversive, but the former likely titillates a much broader audience. Nevertheless, these are all incredibly charged issues, so perhaps we can be forgiven for being irrational about them.

The Standard You Walk Past

This brings us back to the Australian context. Given that our Foreign Minister, Bob Carr, announced that LGBTI issues would become a core part of Australian Foreign Policy, the lack of comment on these issues from Minister Carr is inconsistent with that position. However, this inconsistency conforms to his response to one other major LGBTI humanitarian issues in Australia foreign policy: namely the settlement of LGBTI asylum seekers into a country that criminalises homosexuality. Minister Carr has effectively dismissed the issue with the statement that there should be no problem. This demonstrates the diplomatic stance being adopted by Australia’s foreign office, which is exemplar of the gap between what is being said and what is being done.

This position stands starkly in contrast to American foreign policy, as articulated two years ago by Hilary Clinton as the Secretary of State, and also reflected in President Obama’s comments and actions. However, it even falls behind the more milder reactions from the United Kingdom and Venice.

Silence is complicity, which leads to death, torture, and greater rights violations. This echoes the words of Australia’s own Chief of Army, David Morisson, on the subject of sexual harassment in the Australian Military, evoking his highly memorable phrase “the standard you walk past is the standard you accept”.