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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The Lover that Dare Not Sheath His Mien

This article is a polemic. It speaks about unprotected sex practices relevant to the gay community and for men-who-have-sex-with-men (MSM). The point of this article is not to serve as an apologetic, nor to serve as a health warning, but to unpack the motivations that shape people’s sexual behavior. This article does not advocate for unsafe sex practices, but rather to address the silence on on a highly taboo subject. The longer this conversation remains unspoken, the greater the numbers who take uninformed risks.

What is being discussed here refers not just to individuals who occasionally conduct unsafe sex, but also individuals that live it as part of their lifestyle (even integrating it into their identity), whether they are HIV+ or not, and even people who actively seek HIV infection (bug-chasing). It’s a complicated subject, and the only way to speak to it is to consider the convergence of cultural, sexual, medical, and even historical influences, rather than the individuals themselves.

… there is a limited ability for the criminal system to offset risky sexual behaviours. A stronger and more effective approach would be to address the matter principally as a public health issue and one probably best supported by community development.

The Criminalisation of HIV Transmission: Global Comparisons

Across the world, there are a range of laws relevant to the transmission of HIV, which all turn around the ability to provide informed consent. For the purposes of this article, I am going to limit the exploration of this issue to Anglo-American contexts as it makes for an easier point of comparison. Generally speaking though, most jurisdictions regard an act that either deliberately or recklessly transmits HIV, and so the issue hinged on whether an individual knowingly (whether intentionally or not) contributed to transmission. There are three main contexts that I would like to compare to give a sense around how we ascribe criminality to these matters: Australia, Canada, and the UK. I choose these three nations as a comparison, because they all share a very similar judicial systems, but also because they have inherited the British colonial legacy.

Australia generally regards HIV transmission under both criminal law and public health law, but specifically in New South Wales, the intentional transmission of HIV a criminal act considered grievous bodily harm (GBH), and there are additional requirements to disclose HIV status to potential sex partners.

Canada has some similarities, though lacking any specific HIV statues. However, there are several cases that have set precedents for how these issues are ascribed. R. v. Mabior, (2012) SCC 47 attributes criminal liability to individuals for failing to disclose their serostatus, and despite being subject to significant antiretroviral therapy and despite intermittent condom use, had not transmitted HIV in that period. The ruling found that these actions constituted sexual assault, due to the lack of informed consent on the part of his partners. This, combined with earlier rulings, has established a precedent that means a combination of failing to disclose serostatus and failing to use safer sex measures constitute a sufficiently fraudulent act to vitiate the consent given, transforming the act into sexual assault.

In similar vein, the UK has seven convictions on record for HIV transmission, which pertain to the reckless infliction of grievous bodily harm. What is interesting in the UK situation is that the numerous cases provide a series of comparisons, making determinations around different thresholds of consent. The UK courts have variously found defendants guilty for reckless behaviour in situations where they knowingly were diagnoses as being HIV+ but failed to inform or take protective measures (much like in Canada and Austalia). In one of the two cases where the issue went to appeal, the judgement opined that there may be different standards of consent for those within a committed relationship, compared to those engaging in casual sex. In the other case, there was a specific distinction made between assuming some general risk with casual unprotected sex, and the informed risk relevant to the disclosure of HIV-status.

The Culpability of Desire

Since the birth of clinical medicine, medical thought has sought to produce a philosophy of the human subject and how one should live, but this internal humanism mutates through the new medical technology. This medicalisation was a rendering of natural phenomena into a medical and authoritative framework. It increases the scope of human phenomena encompassed by medicine through a paradigm of disease and treatment. Thus, medicine is discursive and empowers medical professionals as authorities and patients as dependants with little valued medical input. The consequence being the ontology of the human became increasingly produced through medical imperatives. This discourse turns upon a dichotomy of rendering issues into being either normal or pathological, which subsequently frames the issue of public health as risk management, using statistical analyses of probabilities to construct a notion of morality and health. This framework consequently is co-opted by legal thinking, which merely reinforces the issue of legal personhood as being an embodied phenomenon, which simply embeds legal responsibility onto bodily acts.

What we can see on the comparison of these issues is the significance of informed consent to risk, however the tendency to categorise the act as GBH means that consent may not qualify as a sufficient defense, even informed consent. The comparison can be made to R v Brown (Anthony), where consensual sadomasochism resulting in significant injury still constituted a criminal act that was not vitiated by the consent of the participants, nor the lack of complaints filed by the same.

Considering these are criminal matters, particularly considering that in some instances the State intervenes directly with the private conduct between individuals, it is making a determination around the management of HIV transmission as having a public interest.

What we see here is an attempt by three comparative legal systems in relation to determining culpability, or legal responsibility. On these matters, Kane Race seeks to frame how and why these judiciaries and legislatures apportion responsibility for HIV transmission. In particular he notes that despite advances in biomedical research on HIV transmission, there is an increasing tendency for these bodies to confer culpability on discrete individuals, often signified through bodily acts. Specifically, the more the virus becomes framed in the context of medical research, the more that such bodies attribute responsibility to bodies (and thus the person embodied within). That there is insufficient distinction in these matters between the legal person and the body they inhabit is a direct result of the medicalisation of this matter, and one that erodes the complex socio-cultural impetus underlying seual relations, as the primary vector for transmission.

Considering these are criminal matters, particularly considering that in some instances the State intervenes directly with the private conduct between individuals, it is making a determination around the management of HIV transmission as having a public interest. This is where it gets really complicated, because while it is easy to conceive of HIV as a public health concern, it is so intertwined with the individuals who are HIV+ and their sexual practices that the socio-cultural dimension cannot be set aside.

Of interest, Buris points to this, stating that the experience of being HIV+ is viscerally experienced, and that the criminalisation and stigmatisation of HIV are so closely aligned. Not only can being HIV+ dislocate people from their existing social networks, but that the criminalising of HIV transmission creates a strong disincentives to neither test nor disclose. In his work, he show how HIV exposure is not deterred by criminalisation: one third of high-risk sexual subjects never test, preferring not to know their status and thereby making them feel absolved of social and legal responsibilities. Many HIV+ persons fail to disclose their status to primary partners, with only one-half disclosing to casual partners.

Subcultures of Risk and Dissent

Shernoff once wrote a seminal text on the subject called Without Condoms, and in it he explored the psychology surrounding this issue. As a sexual behaviour, barebacking is contextual, to the point that it mostly describes a specific experience of unprotected sex. It is heavily taboo and mostly refers to male-to-male sex that is casual and/or anonymous.

He noted that the emergence of barebacking emerged out of a tension between gay civil rights movements embracing sexual hedonism as statement of sexual liberation, and a slow and resentful reaction to accept the reality of the health risk epidemic created by HIV. Specifically, he highlighted a number of factors that inform the desires and choices regarding barebacking. These can include aversions to condom use or other safe sex, the ‘sanctity’ of a committed relationship, alienation from mainstream gay identities that produce a desire for deviant experiences, internalised homophobia, fatalism of eventual infection, and substance use.

In building on this another scholar named Joffe, in her work ‘Intimacy and Love in Late Modern Conditions: Implications for Unsafe Sex Practices‘, identified a strong correlation between unprotected sex practices within the formulation of committed relationships between same-sex male partners. Primarily, this signified the emotional ties experienced in this transition: she cited studies that suggested that condom use signified a given act of sex act as public and impersonal, while the lack of condom use construed the act as personal and intimate. In this way, she argued that the condom has come to signify a barrier against intimacy.

Specifically, she stated that these interconnections do not describe an aversion to condom use because of a sense of boundedness or limitation, but rather a desire for the emotional tie viscerally experienced in seminal transmission, which heralds the achievement of emotional intimacy.

Specifically, she stated that these interconnections do not describe an aversion to condom use because of a sense of boundedness or limitation, but rather a desire for the emotional tie viscerally experienced in seminal transmission, which heralds the achievement of emotional intimacy. That this experience can be so highly desired, is one of the factors Joffe attributes to overriding our instinctive drive for the preservation of our own health. Moreover, she notes that attitudes towards sex inform condom use overall. Where sex signifies an expression of love and intimacy, than the discontinuing condom use signifies the establishment of trust, which transforms the relationship from the casual to the stable, while continued use undermines the sense of exclusivity and commitment.

Joffe attempts to place this issue in the context of modern society, where there are increasing levels of anonymity and environmental variations: the continuous flux of stimuli intensifies emotional states, which subsequently sanctifies our private and intimate spaces. That is, the private arena becomes authentic, and the public arena creates alienation, meaning that the establishment of authentic relationships through intimate bonds becomes a means for us of establishing mental and emotional integrity in the face of this onslaught.

The Stigmata of Faceless Men

Drawing from both Shernoff and Joffe, and moving beyond the context of relationship building, there is still a large arena where risk-taking occurs, and while some of these practices are attempts to confer intimacy on anonymous encounters, there is a much more complicated range of motivations at play. Effectively, we are talking about a large range of social and personal issues that feed into sexual appetites, which consequently over-ride preservation instincts. Some are inherently self-destructive and nihilistic, while others merely result in self-harm. Ironically, one of the greatest social pressures that intersect with these issues is the stigmatisation barebacking because of its direct association to HIV transmission.

A positive HIV status symbolical carries a loss of sexual liberty, and HIV+ people have frequently reported experiences of becoming dislocated from the mainstream community groups, and thereby find support and solidarity in other similarly stigmatised people. Consequently, this act of separation merely helps to reinforce risk-taking sexual behaviours into a sense of identity because it becomes the means of participation in groups that do accept them. However, group participation doesn’t account for individuals who have casual attitudes towards barebacking. As Shernoff notes, they include a various range of issues, including ambivalence towards the health implications, and fatalism experienced regarding STI infection.

Shernoff conducted a study of those who engaged in barebacking behaviours, and saw that even though a fairly large number of the men sampled were willing to risk infection, the actual number of those who intentionally sought to transmit the virus was infinitesimally small. Of those who deliberately sought to become positive their motivations were a complex tangle of conscious and unconscious motivations. In some circumstances, the anxiety experienced over infection was so intense as to be debilitating. To then proactively control the situation in which they become positive and to finally have concrete knowledge of their status gave them a sense of empowerment they lacked from the state of limbo created by uncertainty of status.

Of Biopolitics and Laws

A lot of ground has been covered in this article, ranging from the legal reasoning behind criminalisation of acts relating to HIV transmission. However, the legislation of a criminal act is a very binary one, either something is criminal or it is not. If the matter is unclear, the court system is required to produce a finding one way or the other and cannot leave the matter ambiguous. However, it does show that there are some complex social phenomena and interactions that the law has difficulty accommodating these nuances and thus defers to the reductive medical models. This means that currently, the law is framing the matter almost purely in terms of its interactions with bodies, rather than with people; while there is some tendency to recognise the agency available to people in their sex acts, it still frames the criminality of the act through the way it is embodied.

However, it is clear when the sociological and psychological dimensions are taken into account, that there exists a much broader ambit of motivations and interactions that are affecting the diversity of choices and encounters around sexual behaviour. More, that there is a limited ability for the criminal system to offset risky sexual behaviours. A stronger and more effective approach would be to address the matter principally as a public health issue and one probably best supported by community development.

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”.