20 years under Putin: a timeline

In late September, the Russian Constitutional Court upheld a law banning gay propaganda, emphasizing that the ban is aimed at “protecting such constitutional values as family and childhood.” IMR advisor Ekaterina Mishina analyzes the background of this issue in Russia and the motives behind the Constitutional Court’s ruling.

 

On June 1, 2013, Russia introduced administrative responsibility for gay propaganda. One of the protests against the ban on gay propaganda took place in St. Petersburg in May, 2013 (depicted above). Photo: comingoutspb.com

 

I learned about the existence of homosexuality in my early childhood. My mother, who at the time was a professor at the Patrice Lumumba University for the Friendship of the Peoples, once came home in tears and told my father that one of her students, who had come to the USSR from a Latin American country to study, had committed suicide. He was gay, and before coming to Moscow, he had never so much as suspected that homosexuals were subject to criminal liability in the USSR. When custodians of public morality reported him to the “proper authorities,” his sexual orientation became known, and the authorities came to arrest him. The student jumped out of his dormitory window to his death. From what my parents told me in response to my barrage of questions, I came to understand that homosexuals were not very happy people, and that their lives in our country were very hard. My parents’ explanation was uncharacteristic of Soviet people. My parents, however, were not of the mainstream.

I became acquainted with Russia’s official position on homosexuality during my second year of studying law at Moscow State University, when I was concentrating on Soviet criminal law. My professors could not avoid explaining to us Article 121 of the Criminal Code of the RSFSR, which established criminal liability for pederasty. Their reasoning, however, differed somewhat from my parents’: according to my professors, homosexuals were not even second-rate, but last-rate citizens, who were both immoral and psychotic. My classmates’ questions about the nature of same-sex relationships were met with unambiguous answers that were not open for interpretation: homosexuals were portrayed as perverse people who lacked ideals and were susceptible to the pernicious influence of the West. It is noteworthy that these answers were given by professors at one of the best universities in the country. It is not hard to imagine what representatives of other segments of the population thought about the subject.

In pre-1917 Russia, no unified stance on homosexuality existed in Russia, and those who favored same-sex love were largely tolerated. A number of famous representatives of the artistic intelligentsia and even some officials made no attempt to conceal their homosexuality, and their orientation did not make them pariahs. Under the Soviet regime, attitudes toward homosexuals varied. In the early post-revolutionary years, in the context of a wide-range liberalization of the population’s attitudes toward gender issues and issues of sexuality, homosexuality was not treated as a criminal offense: neither the 1922 Criminal Code of the RSFSR nor the original version of the 1926 Criminal Code of the RSFSR considered pederasty a specific criminal offense.

The steadily growing authoritarian nature of the Soviet political regime and the simultaneous increase in criminal repressions became obvious in the early 1930s. A number of regulatory legal acts were adopted at that time to make the lives of Soviet citizens “better and more cheerful,” in Stalin’s infamous words. In 1932, the USSR Central Executive Committee adopted a notorious decree that became known as the “law of three spikelets” or the “seven eighths law.” This decree introduced merciless punishments, including execution by shooting and the confiscation of personal property, for the theft of even minimal amounts of public property. Those found infringing upon public property were labeled enemies of the people. Amnesty did not apply to such individuals, and the Soviet authorities considered the fight against them a top priority.

The June 8, 1934, law “On criminal liability for high treason” introduced the notion of collective responsibility for actions that violated Soviet law: family members of an offending individual were considered guilty as well and were subject to punishment. In March 1934, a new article criminalizing homosexuality was introduced to the 1926 Criminal Code of the RSFSR. Two months later, the USSR’s most celebrated writer at the time, Maxim Gorky, ardently supported the innovation with a slogan published in Izvestia newspaper: “Destroy homosexuality, and fascism will disappear!” Article 121 of the 1960 Criminal Code of the RSFSR also upheld criminal liability for homosexuality, and remained in effect until 1993.

The adoption in 1996 of a new criminal code based on democratic principles decriminalized a number of acts considered offenses under Soviet legislation, including pederasty. This was not only a major victory in humanizing Russian criminal law, but also convincing proof that the new Russian government was committed to democratic ideals. Not everyone was pleased that pederasty had been decriminalized, though. Homo Sovieticus was inclined to harbor contempt for those who stood out from the crowd. And Homo Sovieticus proved to be extremely resilient. The Soviet Union collapsed more than twenty years ago, but Homo Sovieticus, having adapted to a new environment, is with us still.

The ban on gay propaganda looks bad to non-homophobes and goes against the global movement to fight discrimination based on sexual orientation.

There is much evidence of this—one piece being the unyielding attempts by Russian politicians to recriminalize same-sex relationships, or at least “propaganda” thought to promote them. State Duma member Alexander Chuyev has worked especially hard on this issue, introducing bills to criminalize the propaganda of homosexuality on four separate occasions. The definition of the new crime proposed by Chuyev was truly magnificent:

“Homosexual propaganda contained in public speeches, publicly displayed works, or the mass media, including that which consists in a public demonstration of the homosexual way of life and homosexual orientation, is punishable by a ban on holding certain offices or engaging in certain activities for a period of two to five years.”

Everyone who had an opportunity to examine this legislative proposal has experienced a catharsis—before starting to explain what is wrong with the bill. Official criticisms have been submitted to the relevant Duma committee, the Duma’s legal department, and the federal government. Pointing to the bill’s evident conflict with the Russian constitution and the European Convention on Human Rights, the Duma and the government unanimously concluded that

  • Establishing criminal liability for propagandizing an action that does not itself constitute a crime is meaningless and illogical;
  • The propaganda of an action that is not criminally punishable does not pose public danger and cannot, therefore, be considered a crime.

But Chuyev refused to give up. With the perseverance of Cato the Elder, he again tried to introduce his beloved bill to the Russian parliament’s lower house. And his voice did not go unheard. On June 11, 2013, administrative liability for gay propaganda—though not criminal liability—was introduced in Russia. Article 6.21 of the Code of Administrative Offenses of the Russian Federation contains the following definition of this action: “Propaganda of non-traditional sexual relations among minors, manifested in the distribution of information aimed at forming non-traditional sexual orientations, the attraction of non-traditional sexual relations, distorted conceptions of the social equality of traditional and non-traditional sexual relations among minors, or imposing information on non-traditional sexual relations which evoke interest in these kinds of relations.”

Things are never so bad that they can’t get any worse. Thankfully, criminal liability for homosexuality has not been reestablished. But the ban on gay propaganda looks bad to non-homophobes and goes against the global movement to fight discrimination based on sexual orientation. When the Universal Declaration of Human Rights was adopted in 1948, this issue was not high on the agenda, so the document does not mention discrimination based on sexual orientation. But the European Union Charter of Fundamental Rights, adopted in 2000, contains a direct prohibition of such discrimination (Article 21). And it is not the only prohibition of its kind.

The infamous new article of Russia’s Code of Administrative Offenses quickly found its way to the Russian Constitutional Court. In an ordinance issued on September 23, 2014, the court ruled Article 6.21 to be constitutional. In its decision, the court noted the following: “The aim pursued by federal lawmakers in establishing this norm was to protect children from information that could push them to non-traditional sexual relations, the adherence to which hinders the development of family relations as they are traditionally understood in Russia, and as they are manifested in the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation recognizes that the possible influence of such information, even when presented in an obtrusive manner, on the future life of a child is not proven beyond doubt.” The court has also emphasized that the interests of children as “persons who have not yet reached the age of legal majority, and who are therefore in a vulnerable position” are an absolute priority, and that federal lawmakers have the right to “use criteria based on the presumption of the threat to a child’s interests in evaluating the necessity of certain restrictions.”

The Constitutional Court has further stated that “Part 1 of Article 6.21 of the Code of Administrative Offenses of the Russian Federation, as its content suggests, presupposes the impermissibility of the propaganda among under-age persons of non-traditional sexual relations, or the imposition upon them of information about such relations by any persons, regardless of their sexual orientation. The use of the term ‘non-traditional sexual relations’ and the phrase ‘distorted conceptions of the social equality of traditional and non-traditional sexual relations’ is conditioned by its intended use and does not constitute a negative attitude by the state toward non-traditional sexual relations as such, and is not directed at the impairment of the honor and dignity of citizens who practice such relations.”

It is worth mentioning that this language is not unfamiliar. The Constitutional Court used a similar trick in an ordinance issued on April 8, 2014: “The legislative design of a non-commercial organization acting as a foreign agent does not imply that this organization will be viewed negatively by the state, is not aimed at promoting a negative attitude toward its political activity and consequently cannot be seen as a sign of distrust or an intent to discredit such a non-commercial organization and/or the objectives of its activity.” In other words, we have once again been told what to see. Lest we think something different...

So Part 1 of Article 6.21 of the Code of Administrative Offenses of the Russian Federation is actually aimed at the following:

“It is aimed at the protection of such constitutionally significant values as family and childhood, as well as at the prevention of harm to the health of minors, including their moral and spiritual development; it does not interfere in the sphere of individual autonomy or self-determination, including in respect of sexual identity; it is not intended to prohibit or censure non-traditional sexual relations; it does not prevent an impartial public debate on the legal status of sexual minorities.”

This, it turns out, is how benevolent Russian lawmaking really is; the goal is worthy, the motivation convincing. Our federal lawmakers have shielded our children from the baleful menace of gay propaganda, based on the presumption of the threat to a child’s interests. Of course, it is a shame that Russia’s authorities haven’t always been so concerned about children’s interests, such as when Russian deputies passed the Dima Yakovlev (anti-adoption) Law two years ago, or with regard to the laws that are now being used to close down children’s hospitals in Moscow.

Russia under Putin

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