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44Law and Politics
Правильная ссылка на статью:
Katsuba S.V. — Hate crimes against LGBT people in Russia: legal status and research challenges // Право и политика. -2021. - № 3. DOI: 10.7256/2454-0706.2021.3.34865 URL: https://nbpublisli.com'Hbrary_read_article.php?id=34865
Hate crimes against LGBT people in Russia: legal status and research challenges / Преступления на почве ненависти против ЛГБТ в России: правовой статус и проблемы исследования
Кацуба Сергей Васильевич
Ассистент кафедры, Кафедра Международного Права, Бурятский Государственный Университет 36470, Россия, республика Бурятия, г. Улан-Уде, ул. Ул.смолина, 24а
Статья из рубрики "Актуальный вопрос"
DOI:
10.7256/2454-0706.2021.3.34865
Дата направления статьи в редакцию:
14-01-2021
Дата публикации:
11-04-2021
Аннотация.
Преступление на почве ненависти - это особый тип правонарушения, мотивы которого основаны на предубеждении против непривилегированной группы. В статье предлагается обзор преступлений на почве ненависти против ЛГБТ в России, с акцентом на несколько конкретных вопросов: (1) правовой статус преступления на почве ненависти в России, (2) существующие источники данных и статистический анализ преступлений на почве ненависти против ЛГБТ, (3) количество таких преступлений и общая тенденция, (4) проблемы сбора и интерпретации данных. Для ответа на эти вопросы в статье говорится о прошлые исследования, отчеты местных и международных организаций, а также правоприменительная практика. Российские суды признают мотив ненависти к ЛГБТ напрямую как «мотив ненависти к социальной группе» (состоит из двух или более людей, которые регулярно взаимодействуют на основе взаимных ожиданий и разделяют общую идентичность. Однако судьи часто избегают прямого применения такой нормы, заменяя мотив ненависти понятием "личная неприязнь" или предубеждением, повлиявшим на мотивы преступников. Это приводит к неверному толкованию статистических данных преступления на почве ненависти против ЛГБТ, поскольку «личная неприязнь» не влечет юридических последствий, связанных с
преступлениями на почве ненависти.Таким образом, отсутствие официальных данных о таких преступлениях побуждает исследователей искать альтернативные источники статистических данных. Для оценки уровня преступлений на почве ненависти против ЛГБТ в России были изучены различные исследовательские подходы и отчеты, которые свидетельствуют о том что количество таких преступлений растет с 2013 года. Кроме того, обозначен ряд проблем, с которыми сталкиваются исследователи при изучении этой темы, и указаны потенциальные направления для дальнейших исследований.
Ключевые слова: ЛГБТ в России, отягчающие обстоятельства, дискриминация, права ЛГБТ, гомофобия, ЛГБТ, преступление из ненависти, криминальное право, русское право, социальные группы
Introduction
For many years in Russia, the «invisibility» and «inferiority» of LGBT people have been perceived as normal. This is a reason, according to human rights activists, that manifestations of aggression, intolerance and political repression against LGBT people in Russia are so widespread nowadays. However, in recent years the situation has begun to change and the country's LGBT community is becoming more open and visible, wanting a peaceful cooperation with the rest of the society. Human rights activists note that in Russia the number of crimes motivated by hatred towards LGBT people has been increasing over the years, while the space for discussing homosexuality is shrinking and a censorship is being introduced in the media. The majority of the Russian citizens still treat LGBT people with intolerance and disrespect J20!.
Human rights defenders note that Russian law enforcement bodies and courts do not protect the life and health of LGBT citizens of the country. Very few criminal cases investigated a motive of hatred towards LGBT people. The UN Committee against Torture believes that the Russian police do not adequately respond to crimes against LGBT people, investigate such crimes ineffectively and do not prosecute the offenders. The UN High Commissioner for Human Rights expressed a concern about the high level of homophobia in Russia and the violation of the rights of LGBT people to freedom of expression and assembly. Human rights activists mention that the type of murders of LGBT citizens, when attackers are specifically looking for their victims is becoming more common in Russia.
This type of crimes can be considered as hate crimes and the legislation of Russia allows this - the description of hate crimes given by the lawmakers introduced hatred towards «social groups» as one of the signs of hate crimes. Furthermore, LGBT is recognized as a social group in law enforcement practice. However, this does not lead to immediate implementation of such norm and the article is reviewing the approaches taken by the judges in practice to formulate and elaborate such crimes. It is further established that when these approaches are used instead of directly stating a motive of hatred, the official statistics for the hate crimes against LGBT does not include these crimes.
However, even though the courts often do not recognize crimes against LGBT as hate crimes, the justice is still being served. Thus, the court rulings are available and can be analyzed. The overview of the past research shows that one of the possible ways to investigate the situation with the hate crimes against LGBT is through analyzing the court rulings for the criminal cases related to LGBT. By applying definitions of hate crimes given by modern legal literature it is possible to use the source of data to further elaborate on the number and the trend of hate crimes against LGBT. Since the official statistics is not
kept, this approach is one solution to provide a generalization of existing reliable data on such crimes.
This approach however has several limitations. The researchers might face challenges related to the interpretations of the victim's sexual orientation by the court as well as the evidence of a motive of hatred in the materials of criminal cases. These challenges are mitigated through several approaches of data analysis.
Hate crimes: definition and legal status
A hate crime is a crime motivated by intolerance against a particular social group. Such crimes are characterized by the fact that they are not directed against a specific individual, but against the entire social group [22]. To classify a crime as a hate crime, it must be based on a prejudice motive. This means that the offender chooses the object of the crime precisely on the basis of his affiliation or alleged affiliation with a particular social group. The object of such a crime can be either a person or a group of people, or property directly related to this social group. This group of people should share a common distinctive feature
[21]. Hate crimes include crimes motivated by the hatred towards race, color, nationality, ethnic origin, sex, sexual orientation, gender identity, disability, political opinion, religion, physical appearance or social status [21, 22].
Hate crimes are a relatively new concept for criminology, activism, politics and everyday life. At the same time we can observe the examples of such crimes in the history - violence against certain groups of people in Nazi Germany and the atrocities committed out of hatred and prejudice received a special recognition in the post-WWII world. Nowadays there is a tendency of an increased sensitivity to social differences, understanding the value of diversity and ultimately a universal definition of humanity. More and more societies begin to consider it a common sense that different groups of people deserve respect, acceptance, equality, support, protection. Hate crime legislation is aimed at protection - the protection of those people who occupy unprivileged position in modern societies and are often the targets of unreasonable violence or other unwanted actions J14!.
The idea of hate-motivated crimes and that people need to be protected from them by punishing the offenders especially strictly, appeared when criminology turned to the study of the victim J91. It is from the point of view of the victim, looking through the victim's eyes, one can fully understand the consequences of hate crimes ^^ On the other hand, there is one circumstance that has to be established. Precisely, the relationships between victims and offenders and between the social groups they represent at the moment of the
interaction --71.
Criminologists suggest that there are several types of offenders that are inclined to commit hate crimes. First, people in communities in which violence and hatred are welcomed as a norm of behavior, especially in masculine societies. This situation is common for people in
imprisonment --71. Violence can be a code of behavior or a necessary requirement. The literature describes cases when violence against a certain a group of people (LGBT, in
particular) was a part of the initiation in a youth semi-criminal group --181.
Another group that is distinguished by the researchers is people who are seeking to commit a crime in order to experience new emotions. However, they often choose a victim based on their own prejudices, due to the lack of other motives.
Alternatively, as described in the works of Barbara Perry, offenders can be those who transfer their anger to the scapegoats. Changes in societies, recognition of diversity among different social groups and their values resulted not only in an increased social justice, but also the emergence of a feeling of deprivation, loss of privileges among some of the groups who considered themselves the most important and successful members of the society. The diversity of our societies sometimes may appear to be a new phenomenon, different from the usual. This is due to the fact that previously many social groups were not represented in the public sphere. This new reality causes different reactions, including hatred, a desire to turn everything back, to restore the order, feeling of the loss of the privileges J16!.
Finally, there is another group of people who are inclined to commit hate crimes - so-called devoted «missionaries» driven by a hateful ideology. This group is a classic cohort of hate-motivated criminals. Such groups are not always aimed at only one type of a victim, often violence is applied to a variety of different people who, within the framework of a hateful ideology are considered to be unnecessary to the society. Let's say neo-Nazis can hate migrants and gays alike, causing persecution to both of these groups [16].
Criminal acts committed by such groups are considered to be «perfect» hate crimes by some criminologists. Nevertheless they constitute a small percentage of hate crimes in modern
societies J12!. Studies have shown that most commonly, hate crimes are committed in an environment where the violence is normalized as a part of people's daily life, be it every
day racism, homophobia or xenophobia i91. In this process of spreading hatred among the
population, lawmakers play a significant role as well as the media -t91. Including negative characteristics of certain groups in their speeches, adopted laws or political programs, politicians send a signal to the society that these groups are imposing a threat, that they are not equal to the rest, or even for some reason responsible for the failures of the politicians themselves («scapegoats»). In many countries these groups include migrants, in modern Russia due to the political homophobia LGBT are legally defined as dangerous subjects, able to spread a negative influence through «promoting non-traditional sexual
relations» J191. «Hate violence is driven by social and political factors and is supported by ideological systems that legitimize such violence. This violence is a consequence of a political culture that distributes rights, privileges and prestige in accordance with biological and social characteristics» J171.
Thus, it is important to point out that violence is one of the forms of public reaction to hate speech in the media and political rhetoric. Thus, hatred towards LGBT people, especially fueled by the Russian media after the adoption of the federal law against «propaganda of non-traditional sexual relations» J191, could result in an increase in hate crimes, but could also be implemented in other forms of discrimination J111.
Metodology
Using Russia as case studies, this chapter analyzes LGBThuman rights recommendations from the cyclical United Nations Universal Periodic Review and how they affect practices within nation-states. Findings: Sweden embraces recommendations to strengthen LGBT human rights and institutes stronger national LGBT rights policies of its own, while Russia's compliance with LGBT rights recommendations is low. Further, reports of LGBT victimization show that the severity of attacks on LGBT people is pronounced in Russia. Social implications: Relying on case studies limits the generalizability of this study, but the implications of these findings suggest that, to strengthen human rights compliance and
improve the lives of minority citizens, human rights advocates should take note of domestic ideologies and leverage the institutional environment of the world society to provide information, resources, and pressure to facilitate nation-states' compliance with international human rights recommendations. Originality/value: This chapter deepens the discourse on the contested realm of international LGBT rights by highlighting the dynamics between international monitoring mechanisms, domestic discourse, and domestic law --131.
Different approaches to incorporate hate crimes in legislation and status of such
legislation in Russia.
States may choose different ways to create law aimed at protection against hate crimes. In some states of the USA, some states of Western and Central Europe, hate crimes are placed in a special legal category. At the same time, in many cases, qualifying a crime as a «hate crime» increases the criminal penalty imposed on the perpetrator. This can be a longer term of imprisonment, or life in imprisonment. In some states of the United States, where the death penalty has not been abolished, an increase in punishment may also be expressed in the death penalty. In other cases, the qualification of a crime as a hate crime may not change the severity of the punishment and be only of a moral-political or formallegal nature --221.
In modern legal literature, at least three models are known. The first model is through improving existing legislation. Even if the laws against hate crimes do exist, when enforcing the laws in practice, they might not always reach their purpose. Therefore, legislators aim at making the texts of the laws unambiguous to avoid unwanted interpretations. This can be reached by adding in the texts of laws, definitions of such crimes or listing specific circumstances that may motivate the hate crimes. This approach may also motivate the lawmakers to provide lists of protected minority identities or social differences that are serving as the constituent element of such identities. Most commonly these differences include race, ethnicity, gender, sexuality, disability, religious affiliation. Of course, such a list reflects a specific historical, social and political situation and can never be complete
The second model of lawmaking in regards of hate crimes is listing aggravating circumstances in addition to the existing corpus delicti. Such a norm can be expressed in a separate article allowing judges to choose a more serious punishment for a hate crime. It may as well be in additional paragraphs of various articles of the criminal code, where the motive of hatred can be the element of the crime. This model of lawmaking is serving as a signal to the criminals that hate crimes towards a specific group of people are punished
more severely than other crimes --121.
Finally, the third model involves the adoption of laws that address specifically hate crimes. In this case, hate is an integral part of such crimes. Such laws may prohibit specific symbols or topics - for example, to condemn the application of the swastika sign or punish a denial of Holocaust. Another way is to determine the mechanism by which hate crimes can be identified i121.
Usually, hate crimes include a narrow spectrum of offenses against property or people. The Criminal Code of the Russian Federation does not contain an article regulating hate crimes. A number of articles of the Criminal Code of the Russian Federation indicate the hate motive as an aggravating circumstance associated with the criminal act. According to the Criminal Code, this aggravating circumstance can be considered for several crimes, such as
murder, intentional infliction of bodily harm, torture, threat of murder, involvement of a minor in the commission of a crime, hooliganism, vandalism, desecration of the bodies of the dead and their burial places. These actions can contain the motive of political, ideological, racial, religious hatred, as well as the motive of hatred or hostility towards any
social group I"3' 51.
Regarding the crimes against property: theft, robbery, extortion, fraud, as well as violent attacks with the aim of stealing property (robbery). In addition, property could be damaged by a hate-motivated attacker. All these actions can be committed without a background associated with a prejudice towards an unprivileged social group. However, when among the circumstances of such crimes a prejudice against the victim manifests itself in some form expressed by attackers, such violations of the law become hate crimes J-121.
Russian lawmakers have applied all three models for mitigating hate crime: they improved existing norms, added hatred as an aggravating circumstance and provided for special articles in which hatred is a crime in itself. Article 63 of the Criminal Code specifies that aggravating circumstance as «the commission of a crime based on political, ideological, racial, religious hatred or enmity, or out of hatred or hostility towards any social group». Russian legislators left this list of prejudices open so that rule of law can respond faster to a changing society and new groups of victims can be included under protection (social groups) J21. The Constitutional Court has confirmed that LGBT persons are a «social group» for the purposes of this provision J41. It is clear that the presence of the rule of law does not automatically mean theiradequate application.
The UN Committee on the Elimination of Racial Discrimination and the European Commission against Racism and Intolerance criticize Russian legislation for the lack of
concepts adopted in international law and ambiguity of wording J81, which makes it impossible tocollect statistics on hate crimes depending on their motive. Monitoring of the situation on the problems of xenophobia and collecting statistics on hate crimes are carried out by expert non-profit organizations, such as the Civic Assistance Committee, the LGBT group «Coming Out» , the National Forum of Sex Workers in Russia, the Russian LGBT Network, St. Petersburg PA «Civil Control» J-121.
Hate-motivated violence against LGBT persons and the failure by the authorities to address the discriminatory grounds for crimes against LGBT persons have been regularly reported by human rights organizations in Russia J21. However, few such cases have reached courts for a number of inter-related reasons. Firstly, the investigation of such crimes often disregards any hate motive as central to the case. Secondly, the victims of homophobic violence are
reluctant to report such instances to police, considering this to be an ineffective remedy J21. Thirdly, intimidation of victims of homophobic crimes by law enforcement bodies, including through disclosure of their sexual orientation and through other harassment, discourages LGBT individuals from reporting or pursuing their cases.
Administrative expulsion of foreigners or stateless persons could be ordered by the court if they had committed an administrative violation when entering the Russian Federation, such as unlawful crossing of State borders. The authorities took measures to prevent such entries. There was a mechanism for informing relevant consulates about the decision to expel a foreigner.
On attacks on lesbian, gay, bisexual, transgender and intersex persons in Chechnya, the delegation noted that all reports of violence had been examined in due fashion and passed
on to investigative authorities. The Ombudsperson's Office had investigated those allegations and had found that they could not be confirmed.
With respect to the involuntary placement of persons in psychiatric facilities, courts could order it on the basis of a medical decision from a psychiatric panel. Safeguards for citizens would be strengthened. In 2016, courts had reviewed more than 25,000 decisions for involuntary placement in psychiatric facilities. More than 89 per cent had been resolved
fully. In the majority of cases, the decision had been justified [24].
Finally, it is noteworthy that the Criminal Code prohibits both the incitement of hatred or enmity and the abasement of a person's dignity. Despite the Criminal Code allowing for the prosecution of hate-motivated violence against LGBT groups and for the imposition of higher sentences in such cases, there has been a limited number of criminal cases against individuals or groups whose activities specifically targeted LGBT persons.
As two examples of aforementioned we can bring those two cases, where courts acted differently in establishing the motive of hatred. According to Bartenev, «In 2015, nine members of a criminal group were convicted of a number of crimes, including the threat of murder, infliction of grave bodily harm, torture, battery and deliberate infliction of bodily harm. As noted above, all of these crimes carry a higher sentence when found to be hate-motivated. In this case, all of the crimes were found to have a hate motive towards a social group, which the Court referred to as «persons of non-traditional sexual orientation». The members of the group were also convicted of participation in an extremist group. The criminal group used online dating systems to arrange to meet gay men, and then would torture and beat them» [2]. Another example is from 2012, «a man used tear gas to attack participants at an LGBT public assembly». He shouted «sodomy is a mortal sin» and later argued in his defense that the LGBT assembly was unlawful and contrary to public morals. He was convicted of hooliganism with the use of a weapon under Article 213, the Court having found that there was no hate motive for his offence which would allow a conviction for hooliganism on the basis of hatred. When one of the victims of the attack later brought a civil action against the offender arguing that his actions had been discriminatory because they were motivated by hatred against LGBT persons, a different District Court dismissed the discrimination argument as «ungrounded» without providing further explanation» --21.
The Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT Committee) has voiced its concern over the failure of the Russian authorities to investigate and prosecute hate-motivated crimes against LGBT persons. In 2012, the Committee noted its concern «at reports that police have failed to promptly react to, or to carry out effective investigations and bring charges against all those responsible for violent attacks against (...) (LGBT) persons» . It went on to recommend that Russia take effective measures to ensure the protection of all persons at risk, including LGBT persons. The Committee stated that «all acts of violence and discrimination (. ) should be promptly, impartially and effectively investigated». 25 The Committee further recommended that Russia compile statistics on all crimes against members of vulnerable groups, including figures on the investigation and prosecution of such crimes. The Committee also recommended that Russia should «publicly condemn attacks against (...) LGBT persons (...), and organize awareness-raising campaigns, including among the police, promoting tolerance and respect for diversity» [2].
Overview of the past research
Past research on the number of hate crimes against LGBT in Russia is very limited. Official
sources do not report such crimes. Thus Russian civil society organizations are involved in monitoring violence and statistical analysis. In our case, the most credible source is the reports of the Russian LGBT Network, published annually. The reports contain information
about the time, places, types of crimes, offenders, police reactions J-101. According to this research, in 2015,there were 55 such crimes 33. Such data is used for OSCE statistics. Since the official Russia has not provided data for a long time, the OSCE uses numbers, available to civil society.
Another attempt to analyze the hate crimes was by Dmitry Bartenev in 2016. In his report, several specific features of justice for LGBT in Russia were shown. «Despite the fact that the Criminal Code allows prosecution of hate violence against LGBT individuals and harsher punishments in such cases, there were very few criminal cases against individuals or groups
whose activities are focused specifically on the LGBT community» t21. This report however, does not attempt to structure and analyze the available data. The report presented different case descriptions that are still very indicative, including for instance difficulties of the access of LGBT people to justice. The report contains episodes, related to LGBT rights in Russia, in a more general legal context.
One research covers the longest period of time - studying hate crimes against LGBT over the course of six years. This work attempts to analyze all available court decisions on hate crimes against LGBT people in Russia between 2010 and 2015 and established that there were 250 such court rulings on hate crimes J-121. The resulting information and statistical data is indeed limited due to a very conservative approach, chosen by the researchers. Nonetheless, up to date this research is providing the most complete statistical data available.
The research studied the texts of the court rulings to find the mentions whether the victim's homosexuality or LGBT identity was one of the main motives for the crime. The texts of the court rulings were obtained in two sources: (1) e-system «Pravosudie»; and (2) a database of judicial decisions «RosPravosudie». The first database is the official source of information on judicial documents in Russia, created by the Government of Russia. The database includes documents of all courts of the Russian Federation. Although the database created in 2006, the most complete documentation is availible since 2010. At the time of the research «Pravosudie» included 35 862 091 texts. As for «RosPravosudie», this was a nonprofit and non-government project, created to provide more transparency and openness to the justice in Russia. The database was however discontinued in 2018 after the website was blocked by the Russian authorities. At the time of the research, this database included more documents than the official e-system (122 854 235 texts).
The subject of the research was the documents available in the indicated databases -almost always court decisions of different courts in full text in an anonymized form. These texts contain descriptions of criminal cases, the main arguments presented by the parties during the process, the qualification of the criminal offenses by the prosecutor and judges and the final verdict of the court. The anonymized data is mostly the names and surnames of the participants of the process, their places of work, etc. Other details are presented in
full, including the information on the victim's sexual orientation J-121.
However, the texts that were analyzed by the researchers were formal documents of the courts, typically 20-25 pages long. They cannot contain all the details of the relationship between the criminal and a victim, and therefore any judgments about sexuality remain fragmentary and incomplete. Thus, there are two crucial issues that researches had to
develop criteria for. First of all, identifying victim's sexual orientation in the materials of the criminal case; secondly, establishing the motive of hatred --121.
Difficulties of data analysis. Identifying the motive of hatred against LGBT.
As aforementioned, the first difficulty is to identify the victim's sexual orientation or gender identity in the texts of court rulings. It is further established that there are three ways in which the court recognizes the victim as an LGBT (formulating it as «a person of non-traditional sexual orientation»). Firstly, the victims, the defendant or witnesses testify about this and this testimony is reported by the court as a recognized fact of the case. Another approach taken by the courts to recognize the sexuality of the victim is a recognition of the «immoral behavior» of the victim as one of the circumstances of the case. Defendants may indicate that the victims «harassed» them and that led to committing a crime. Finally, judges can also refer to the evidences, most commonly the fact of correspondence on the Internet or via SMS. Usually these evidences are described in more or less detail in the texts, this is especially important when a judge is referring to the hate
motive as one of the most important in the case --121.
Thus, the court recognizes the victim's sexuality as a fact in three ways: (1) referring to the information expressed by the participants of the process (testimony of the victim, witnesses, defendant); (2) indicating the victim's «immoral» behavior; (3) recognizing the evidence about the victim's sexuality truthful. In other words, the court is an active subject when considering the question of sexuality - the judge has to either enter such facts in the text of the verdict, or negatively evaluate the behavior of the victim, or even consider in detail the question of the victim's sexuality in the courtroom, developing a criteria homosexuality.
If proving victim's sexual orientation is a challenging task for the courts (and even more challenging to determine for the researchers), establishing a motive of hatred is even more difficult endeavor. Legal literature does not have a clear mechanism to prove the motive of hatred in court. Is it enough that the offender expresses hatred through insults about the victim's sexuality before committing a crime? How deep does hatred have to be to be recognized as the main motive? What if there are other motives among the circumstances of the case? For example, self-profit is one of the most commonly used motives. Crimes against property are often motivated by self-profit and it is relatively easy to prove. So it is well received by the courts because the motive is clear and established by the circumstances of the case. At the same time, hate is a feeling that is hard to elaborate. Additionally, if the investigation refers to hatred as a motive, it has to provide sufficient evidence. Thus, Russian courts do not always directly admit that a particular crime is
committed on the basis of hatred --121.
Considering these complexities, it is suggested that it is not necessary to focus on hate as an obvious factor. In this instance we need to refer back to the definitions of hate crime. Hate crime is a form of a crime that is motivated by a prejudice towards the victim who is perceived as a member of an unprivileged social group. Taking this into account, such a crime must have signs of bias, an unfair judgment. Therefore, in cases dealing with the crimes against LGBT people, one should seek such predictors in what the defendant thinks about the sexuality of the victim, is sexuality a significant variable in a particular criminal case? Of course, this should be studied according to the opinion of the court and through what is established by the court. The analysis of the court rulings allows us to conclude that anti-LGBT motivation of criminals in cases of hate crimes, are formulated by the court
in two ways J-121.
The first one is the statement about «a personal enmity that has appeared» or continuous «personal dislike» towards the victim from the defendant. According to the texts of the courts, a personal dislike arises, if the offender learns about «a non-traditional orientation» of the victim and in this regard begins to from a criminal intent. On the other hand, if the criminal has long known about the sexuality of the victim, then in the texts of the court it is reported as a personal enmity, which suddenly becomes a reason for committing a crime.
An indication of a personal dislike is the most common form of reporting hate motives used by the court. The legal consequences of this would not be as serious as if there was a direct indication to a hate motive. However, the feelings are not much different. In a purely legal sense, «a personal dislike» is a less serious feeling that does not require a special procedure to prove or more severe penalties. «Dislike» is convenient for courts and investigators in terms of procedure, since it fills the gaps in the evidence base, but is not time-consuming and does not require a further investigation. It allows courts and investigators to compose the text of the verdict that is understandable to everyone in the
judicial system J-121.
Another approach is a direct indication of the hate motive towards the victim's sexual orientation as the most significant circumstance when choosing a victim. Courts rarely do this (not only because of prejudices, but also for formal, procedural reasons), however, such cases are also found in the database of court rulings. In this case, following the Constitutional Court of Russia, the judge indicates that the motive for the crime is hatred towards a «social group» which is represented by the victim, namely LGBT people J-121.
Back to the past, USSR, where LGBT was invisible for people's eyes, but was forbidden, disrespected and humiliated by sovieat society and government. In 1933, the Soviet government under Stalin recriminalised sex between men. On 7 March 1934, Article 121 was added to the criminal code for the entire Soviet Union that expressly prohibited only male homosexuality, with up to five years of hard labour in prison. There were no criminal statutes regarding sex between women. During the Soviet regime, Western observers believed that between 800 and 1,000 men were imprisoned each year under Article 121. More recently, a third possible reason for the anti-gay law has emerged from declassified Soviet documents and transcripts. Beyond expressed fears of a vast «counterrevolutionary» or fascist homosexual conspiracy, there were several high-profile arrests of Russian men accused of being pederasts. In 1933, 130 men «were accused of being 'pederasts' - adult males who have sex with boys. Since no records of men having sex with boys at that time are available, it is possible this term was used broadly and crudely to label homosexuality». Whatever the precise reason, homosexuality remained a serious criminal offense until it was repealed in 1993 J231.
After Stalin died in 1953, he was replaced by Nikita Khrushchev, who proceeded to liberalize the Stalin era laws regarding marriage, divorce and abortion, but the anti-gay criminal law remained. The Khrushchev government believed that absent of a criminal law against homosexuality, the sex between men that occurred in the prison environment would spread into the general population as they released many Stalin-era prisoners. Whereas the Stalin government conflated homosexuality with pedophilia, the Khrushchev government conflated homosexuality with the situational, sometimes forced, sex acts between male prisoners.
The criminal article for «sodomy» in our country existed from 1934 to 1993. Until the end of the 1980s, about a thousand men were sent to prisons through it every year, and even in
post-Soviet Russia, such sentences were numbered in the hundreds. At the same time, not all cases known to the authorities were brought to court. This was especially true of the creative intelligentsia, on which a lot of compromising evidence was collected in terms of same-sex love. They used it, however, only in relation to those who did not enjoy the favor of the party and government.
Consider Soviet film, music and theater stars who were proven or alleged homosexuals and whose fates were different.
Georgy Millyar
The star of cult fairy tales directed by Alexander Rowe, despite his all-Union popularity, did not enjoy the special favor of the Soviet regime. For example, the title of People's Artist of the RSFSR was awarded to him only in 1988, when the actor was already strongly over 80.
The reason for this, it is believed, is not only in social origin (Georgy Millyar was the son of the French aristocrat Franz de Milleu and changed his last name so that it would not be striking), but also in homosexuality. The artist was even close to being thrown into prison for sodomy, and his friend Rowe insisted that he enter into a fictitious marriage to divert his eyes. So at 65, Millyar married his neighbor in a communal apartment, 59-year-old Marya Vasilievna. At first, she did not understand the sentence and said that she didn't need men, to which the groom uttered the phrase widely circulated later: «I'm not a man, I am Baba Yaga».
It is not surprising that after the death of Alexander Rowe in 1973, the famous actor with a « bad» reputation did not receive more significant roles, and even an apartment for him and his wife after resettlement from a communal apartment was allocated on the outskirts of Moscow. It was in this obscurity that Millyar died in 1993, a little before he was 90 years old.
Vadim Kozin
The legendary singer and songwriter was especially popular in the Soviet Union in the 30s and during the Great Patriotic War: during this period, more than 50 of his records were released in the country, for which huge queues lined up. Received Vadim Kozin and official recognition. It is reported that Marshal Ivan Bagramyan personally presented him with the Order of the Red Star for his speeches on the front line, and in 1943 the artist performed at the famous Tehran conference.
Kozin's career, however, instantly came to naught in 1944, when he was convicted of sodomy and child abuse for eight years and sent to the Kolyma. There are legends about the true reasons for such harshness in relation to the country's favorite, most of which mention a quarrel with the powerful head of the NKVD Lavrenty Beria. Be that as it may, in prison, Kozin continued to be creative, taking advantage of the camp administration, and was released in 1950.
His career took off again, and after a few years the singer returned to the stages of the European part of Russia. However, in 1959, the incredible happened: he was again convicted under the same article and again sent to the Kolyma camps. This time Kozin was imprisoned until 1968, and after his release he lived his entire life in Magadan in the status of a local legend. He died in 1994, when he was over 90, and remained the only Soviet celebrity sentenced twice for homosexuality.
Rudolf Nureyev
The first Soviet «defector» from among the artists decided to stay in the West largely because of his sexual orientation, with which it was difficult to live in the USSR. As a young star of the Kirov Leningrad Opera and Ballet Theater (now the Mariinsky Theater), Rudolf Nureyev could well have earned a prison term for his love affairs in the « northern capital». So, the writer.
Gennady Trifonov told how in 1960 he found a brilliant dancer kissing a cadet of the Suvorov school right through the fence of this educational institution.
A year later, 23-year-old Nureyev decided to stay in Paris, where he was on tour of his theater. On the plane, he even threatened to commit suicide with scissors if they tried to detain him. Thus began his dizzying Western career, as well as his free sex life. From Nureyev's novels with colleagues, the famous Dane Eric Brun and the novice American Robert Tracy, a long and serious relationship arose (A fragment from the memoirs of the famous Bulgarian ballerina Sonya Arova, Eric's close friend) If Brun was the only dancer whom Rudik recognized as his equal, he was also the only one whom he allowed to exercise power over him. «Teach me this» he always said to Eric. «If Eric played a role brilliantly, Rudik did not calm down until he started playing the same role just as brilliantly» says Sonya. «For him it was the greatest stimulus for a very long time».
The legendary artist, like many famous people of his sexual orientation at that time, died of AIDS: having become infected in the early 80s, he lived until 1993 and was buried in the famous Parisian cemetery Saint-Genevieve-des-Bois.
Yuri Bogatyryov
The actor, who starred in almost all the first films of Nikita Mikhalkov, the director, became famous thanks to them throughout the country. The first success came to Yuri Bogatyrev after the release of the picture «One among strangers, a stranger among his own», when he was only 27 years old. In parallel, he had a successful theatrical career. Many were jealous of the young celebrity, who seemed to have even more abundant laurels and high-profile achievements ahead. However, in reality, everything turned out to be much sadder.
The fact is that since childhood, the actor did not look like his peers, having an extremely feminine character. He did not like to play with boys, preferring the company of the opposite sex, doted on dolls that he made himself, and even put on maternal dresses and jewelry. As it turned out later, all this was a sign of his sexual orientation. But it turned out to be incredibly difficult for Bogatyrev to accept the truth about himself, and, according to the testimony of his friends, this internal struggle gradually destroyed him. The actor did not save the relationship with men, in which he nevertheless entered.
Being at the zenith of fame and seemingly without the slightest reason, Bogatyrev began to drink, take antidepressants, put on weight and lost his shape. In 1988, he was awarded the title of People's Artist of the RSFSR, and on January 9 of the following year, he was found in an apartment with a heart attack. Doctors injected the actor with clonidine, which was incompatible with the antidepressants he had taken the day before, and as a result, he died
the very next day. At the time of his death, Bogatyrev was only 41 years old J-11 (Artists of Soviet gay cinema).
Summarizing the above, we can say that the motive of hatred is recognized by the court when, among the circumstances of the crime, «personal dislike» or «hate towards a social group» are shown, expressed in the form of a choice of the victim. This may not lead the court to a formal recognition of the act as a hate crime against LGBT people and
subsequent legal consequences, but is still very significant [6].
The number and qualifications of hate crimes against LGBT in Russia.
The research further proves the efficiency of the mentioned criteria for identifying the sexuality of the victim, motives of hatred in texts of court rulings. By applying them, it is possible to identify among thousands of texts of court decisions available online those that are related to LGBT. Further, it is possible to find cases of hate crimes. These texts are courts decisions on criminal cases, announced by the courts of first instance. As aforementioned, by applying this method the research was able to investigate such documents for the period from 2010 to 2015. Over the course of six years, 250 hate crimes against LGBT people were identified, an average of 42 crimes per year J12!.
The main findings show an increasing trend in the number of hate crimes against LGBT over the course of six years: 2010 - 18, 2011 - 32, 2012 - 33, 2013 - 50, 2014 - 52, 2015 - 65
[12]. Besides that, the number of crimes grows dramatically in 2013 when the law on the prohibition of «propaganda of non-traditional sexual relations» was accepted. In 2015, the number of hate crimes is twice as much compared to 2012. A low number in 2010 - 18 cases - can be attributed to both a low number of such crimes, and the lack in the completeness of the databases at that time.
The data obtained by the researchers is described as the highest credible number that can be obtained utilizing a very conservative approach that was chosen and facing various limitations in data collection. In reality, the volume can be much higher. However, the data allows drawing some critical propositions and hypothesis for the further research. First, contrary to the official statements of the authorities, hate crimes against LGBT people do exist in Russia, which is proved by official documents (court verdicts). Second, violence against LGBT people is systematic, since these are not isolated cases. Third, the number of hate crimes against LGBT people is on the rise.
As for the classification of the crimes, if you look on the legal interpretation of cases, then hate crimes against LGBT people in Russia include the following offenses: murder, manslaughter, negligent homicide, bodily harm (severe, moderate, light), beatings (decriminalized in 2016), torture, abduction, extortion, theft, robbery, fraud, property invasion, property destruction, as well as other accusations. These crimes are hate crimes if the bias towards the victim took place, according to the most conservative definitions. Data
indicates that the number of crimes for all types grows from 2010 to 2015 [12].
In some of the cases, several different crimes were committed at the same time, thus the accusation was based on several articles of the Criminal Code. Thus, one number is quite important - the number of murders that were committed without committing any other crimes. In this case, a criminal did not commit a crime for profit, concealment of another crime or other motives. These cases are an integral part of the statistics since they illustrate the situations when LGBT people are killed purely for being LGBT, and the number of such cases is also increasing in 2015 [12].
There is also a notion that the punishment that criminals receive for committing hate crimes are more severe. On average for hate crimes against LGBT the criminals were sentenced
10.45 years in imprisonment J12!. Since judges rarely formally recognize a motive of hatred as an aggravating circumstance, these data may be explained from two perspectives. First, the judges «informally» consider the motive of hatred as an aggravating circumstance and set longer prison terms for the accused. Secondly, the hate crimes are more violent than the
«usual» murders, and therefore the terms of imprisonment to which the accused are longer.
As aforementioned, numbers show the total of 250 texts of court decisions on hate crimes from 2010 to 2015. This figure is further demonstrated in relation to other indicators, the amount similar crimes in other countries. The research suggests the comparison of the statistics of hate crimes available in Russia with respective statistics from the United States. For instance the data shows that in 2010, Russia and the United States recorded approximately the same level of hate crimes against LGBT people, but since 2013 the number steadily rises in Russia and overtakes the American indicators. In 2015, the murder rate of LGBT people in Russia - 2.5 times more than in the USA (the median value of the USA for all years is 54% of the median value of Russia). Although in 2015 the number of violent deaths of LGBT people in Russia and the USA it turned out to be almost equal (27 and 24, respectively), looking through the number of the population of these countries, the scale of the problem becomes more comparable J12!.
A comparison of data for both countries (murder of LGBT people in Russia and the USA) demonstrates two further propositions. Firstly, hate crimes may be a more adequate source of comparative parallels in the field of LGBT rights in the world (unlike same-sex marriage), Secondly, Russia can be described as a country in which recently the environment for LGBT rights has significantly deteriorated, which is reflected in the number of murders of LGBT that has doubled since 2013, the year of the adoption of the «propaganda law».
Conclusion
The study was aimed at giving an overview of the current situation related to the hate crimes against LGBT in Russia. This was assessed through a comparative analysis of the previous research. Additionally, the legal terms, respective law and law enforcement practice were elaborated in order to deliver a contemporary theoretical framework of the phenomenon. It is shown that currently the topic is challenging for the researchers and different approaches must be applied in order to receive more informative insights.
In order to mitigate such difficulties, methods have been analyzed for determining hate crimes against LGBT in current law enforcement practice. This included sources for data collection (existing court rulings, reports of the international and local human rights organizations), approaches to analyze the motives of hatred (using a specific vocabulary of the judges - «a personal dislike» for instance - to assess the level of prejudice towards victims) and the level of connection with the LGBT.
As a result, as can be seen from different sources, the hate crimes do occur in Russia. The most common number of crimes on average that is given by the most of the researchers is 40-50 crimes annually. Furthermore, the level of hate crimes against LGBT in Russia is higher than the level of such crimes in the United States, if referring to the number of murders.
Future studies can be proposed to further improve the awareness of the topic. It is elaborated that the available past research include hate crimes against LGBT until 2015. Thus, applying methods of data collection and approaches to data analysis summarized in this paper it is suggested to investigate such crimes in later period of time. Additionally, these methods can be implemented to establish a continuous monitoring of hate crimes against LGBT in Russia.
In 2020 LGBT communion will still suffer from society and government. In july 3, when US embassy raised LGBT flag, Vladimir Putin had scepticism about this action, however marked,
that there are no discrimination in religion, nation and sexual aspects J25!.
LGBT still a very serious, strange, and even cruel theme on religion, social, political and government levels, that demands a lot of time, resources, and patience for it's solution.
Библиография
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https ://web.archive.org/web/20140308193817/http://www.sptimes.ru/story/35384 (access: 26.07.2020).
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https://doi.org/10.1007/s10612-013-9228-x
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Результаты процедуры рецензирования статьи
В связи с политикой двойного слепого рецензирования личность рецензента не раскрывается.
Со списком рецензентов издательства можно ознакомиться здесь.
Данное исследование представляет собой попытку качественного анализа видов преступлений, основанных на ненависти к представителям современных российских ЛГБТ-сообществ. Таким образом, оно выполнено в русле междисциплинарности правового и политологического анализа. Актуальность данной тематики не вызывает сомнений на фоне роста активности общественных движений, выступающих в защиту сексуальных, религиозных и национальных меньшинств, которые зачастую сталкиваются с угрозами как физического, так и вербального характера, преследованием в социальных сетях и на улицах. Последние кейсы, демонстрирующие открытые намеренные акции насильственного подавления, которые транслируются при этом в СМИ, в отношении представителей движения феминизма или отдельных ЛГБТ-групп, свидетельствуют о том, что общество весьма сенситивно к данной тематике на фоне подъема национальных настроений, выступающих в защиту традиционных ценностей. Автор формулируют ключевую проблему исследования, которая заключается в том, что российские суды зачастую не рассматривают преступления в отношении представителей ЛГБТ как преступления, основанные на почве ненависти. Целевая установка, таким образом, сформулирована достаточно четка и предложены конкретные научные методы по анализу данных криминальной статистики. Статья имеет четкую логическую структуру и теоретический базис, которые посвящен концептуализации типов преступлений на
почве ненависти. Выделяются субъекты и объекты данных преступлений, приводятся классификации групп, которые занимают те или иные идейные позиции в отношении представителей сексуальных меньшинств или граждан, сочувствующих ЛГБТ сообществам. Рассматриваются также отдельные идеологические установки, характерные для тех или иных представителей гражданского общества. Статья написана на высоком научном уровне, свидетельствует о знании автором основных юридических подходов к изучаемой проблематике и классификации видов преступлений, основанных на расовой, национальной, религиозной и иной ненависти. Материалы исследования опираются на большое количество источников как общетеоретического плана, так и на реальные кейсы из судебной и уголовной практики на территории Российской Федерации. Тем не менее, в практическом отношении несколько устаревшими выглядят данные статистики, предоставленные автором за период 2010-2015 годов, так как с тех пор произошли значительные перемены как политического плана, так и в уголовно-процессуальной практике. Немного неполным выглядит представленное в библиографическом списке обращение к Интернет-источником, так автор приводит только одно видео с канала блогера Ильи Варламова. Следует отметить, что и дата обращения к источникам свидетельствует о том, что статья несколько «залежалась на полке» и прошло более года с момента написания общетеоретической и методологической части, на основе которой может быть проанализирован актуальный эмпирический материал хотя бы на примере городов Москвы и Санкт-Петербурга. Тем не менее, данное замечание может быть легко устранено, источники актуализирована, а сама статья представляет достаточно высокий интерес для англоязычной читательской аудитории журнала «Право и политика», поэтому может быть рекомендована к публикации. This study is an attempt at a qualitative analysis of the types of crimes based on hatred against representatives of modern Russian LGBT communities. Thus, it is carried out in line with the interdisciplinarity of legal and political science analysis. The relevance of this topic is beyond doubt against the background of the growing activity of social movements advocating for sexual, religious and national minorities, which often face threats of both physical and verbal nature, harassment on social networks and on the streets. Recent cases demonstrating open intentional acts of violent suppression, which are broadcast in the media, against representatives of the feminist movement or individual LGBT groups, indicate that society is very sensitive to this topic against the background of the rise of national sentiments advocating for traditional values. The author formulates the key problem of the study, which is that Russian courts often do not consider crimes against LGBT people as crimes based on hate. The target setting, thus, is formulated quite clearly and specific scientific methods are proposed for the analysis of criminal statistics data. The article has a clear logical structure and theoretical basis, which is devoted to the conceptualization of types of hate crimes. The subjects and objects of these crimes are highlighted, classifications of groups that take certain ideological positions in relation to representatives of sexual minorities or citizens sympathizing with LGBT communities are given. It also examines certain ideological attitudes characteristic of certain representatives of civil society. The article is written at a high scientific level, testifies to the author's knowledge of the basic legal approaches to the studied problems and classification of types of crimes based on racial, national, religious and other hatred. The research materials are based on a large number of sources both of a general theoretical plan and on real cases from judicial and criminal practice on the territory of the Russian Federation. Nevertheless, in practical terms, the statistics data provided by the author for the period 2010-2015 look somewhat outdated, since since then there have been significant changes both in the political plan and in the criminal procedure practice. The reference to the Internet source presented in the bibliographic list looks a little incomplete, as the
author cites only one video from the channel of blogger Ilya Varlamov. It should be noted that the date of reference to the sources also indicates that the article is somewhat "lying on the shelf" and more than a year has passed since the writing of the general theoretical and methodological part, on the basis of which the actual empirical material can be analyzed, at least for the cities of Moscow and St. Petersburg. Nevertheless, this remark can be easily eliminated, the sources are updated, and the article itself is of high enough interest for the English-speaking readership of the journal "Law and Politics", therefore, it can be recommended for publication.
