Public orders: The sex crimes of policing

Abstract

This article reflects on the policing of sexual and gender minorities in New South Wales (NSW) in connection with Justin Ellis’ Policing Legitimacy: Social media, scandal and sexual citizenship. Ellis’ book approaches the scandal precipitated by the social media circulation of bystander footage of police assaulting a young gay man at the 2013 Sydney Gay and Lesbian Mardi Gras as a threshold case of ‘sousveillance’ – ‘watching from below’ – and investigates the disruption this practice can make to instituted relations between police, media and other organisations, and its significance for sexual citizenship.

Every so often a book comes along that investigates an event you have lived through in a way that extends, frames and assesses the meanings and impacts of that event. For me, Justin Ellis’ Policing Legitimacy: Social media, scandal and sexual citizenship is such a book. ¹ In this essay, I discuss my response to it, grounded in my own situated concerns and critical experience.

Policing Legitimacy zooms in on the brutal treatment of a young gay man, Jamie Jackson Reed, at the hands of police at the 2013 Sydney Gay and Lesbian Mardi Gras parade. The violence was filmed by an onlooker who had the fortitude to ignore the police officers’ instructions to stop filming. The footage was uploaded onto YouTube and soon went viral, precipitating a torrent of complaints and disaffection about the policing of sexual minorities over Mardi Gras and more broadly. This galvanised hundreds of protestors (including myself) to rally down Oxford Street the following week and gather at the Surry Hills Police Area Command where we expressed our anger and dismay at police treatment of queer communities in Sydney.

In an era when LGBTIQ+ advocacy is largely delegated to incorporated NGOs, this kind of spontaneous irruption of grassroots dissent among the queer community had become rare indeed. In response to the unrest, several community organisations held a forum on Mardi Gras policing some months later. The NSW Police Force launched three internal investigations into police conduct. The charges against Jackson Reed (resisting arrest, offensive language, assaulting police) were dropped. NSW Police were made to settle a number of (mainly successful) civil actions brought against them by Jackson Reed and other festival-goers who claimed similar mistreatment – to the tune of almost $700,000. ² Community organisations compiled a list of recommendations from the forum on policing and delivered it to the police. ³ And just before the following year’s festivities kicked off, NSW Police Force signed a Memorandum of Understanding with Sydney Mardi Gras about policing the event.

But, as Ellis indicates in the measured, empirically grounded, wide-ranging analysis developed in his book, the event itself – informed and animated as it was by longer and broader concerns about the policing of sexual and gender minorities in NSW – is not over. In the smartphone era, the credibility of police is ever subject to what Ellis dubs ‘the social media test’ in which any civilian–police encounter bears the potential to become a disruptive police media moment. Here, credibility becomes an ‘ecosystem; a dynamic and porous mutual constitution of reputation between online, offline and in-person representations of policing that need to be aligned to sustain public confidence and trust in police’. ⁴ The question of police legitimacy becomes dynamic, open-ended, subject to interpretative frames that draw from longer histories, legacies, and communal memories of apprehension, neglect and violence. In Sydney these legacies are extensive. They range from the police brutality and arrests that occurred around the Darlinghurst Police Station in 1978 in connection with the first Mardi Gras parade, to the string of unsolved homicides that occurred mainly at gay cruising grounds over the 1980s and ’90s of which handling on the part of police has been subject to numerous (privately and publicly initiated) investigations, scrutinised in books and documentaries such as Deep Water, ⁵ and just lately, prompted the NSW Special Commission of Inquiry into LGBTIQ Hate Crimes. ⁶

Ellis frames Policing Legitimacy as a case study in ‘digiqueer criminology’. He situates the bystander footage of Jackson Reed’s assault as a threshold case of ‘sousveillance’ – ‘watching from below’ – and investigates the disruption this practice can make to the instituted relations between media, state and other organisations that typically mediate the accountability of the police to the public. ⁷ Occurring the same year as the emergence of the Black Lives Matter movement in the United States (US), Ellis takes the outrage over the Jackson Reed footage as an opportunity to investigate how sousveillance might contribute to struggles around police relations and sexual citizenship in Australia and comparable places. Notably, Black Lives Matter has become a larger social justice movement generating wide-ranging critiques of the carceral state, the militarisation of the police, racial profiling, the criminalisation and surveillance of the poor, and the racial disparities that persist in the US and beyond. Diverging from earlier civil rights movements, it has devised a distinctly intersectional approach to analyses of structural racism, police brutality and state violence (eg, Black Trans Lives Matter). So, how does this square with the ambitions of a queer criminology that, on Ellis’ definition, draws on ‘aspects of rights and recognition discourse within research on “sexual citizenship”’ to enhance and evaluate ‘efforts to address the inequalities and discrimination faced by LGBTQI people in the criminal justice context’? ⁸ By restricting the ambit of queer to fixed, established, singularised LGBTQI identities, queer criminology’s critical energies risk becoming disciplined, circumscribed and palliated. ⁹

Legal scholar Dean Spade has discussed how the liberal rights framework behind ‘rights and recognition discourse’ reduces discriminatory treatment to a perpetrator/victim dyad, in which structural violence becomes a question of individual transgression, a matter of ‘bad individuals who intentionally make discriminatory choices and must be punished’. ¹⁰ Spade further argues that forms of legal redress that restrict themselves to legal recognition of the rights of separate minority ‘identities’ largely fail to remediate what is systemic about this violence. He points to the surveillance, policing, criminalisation and incarceration of people for drug offences, for being poor, homeless, outcast, immigrant, unidentified, loitering and so on, that have particular impacts on queer and trans people – especially queer/trans people of colour – but are obscured within liberal discourses that prioritise legal recognition and rights. ¹¹ Spade writes from the US, but his argument is relevant for Australia, where queer, trans and gender-diverse youth are disproportionately susceptible to family breakdown, homelessness, poverty, drug use, sex work and involvement in the criminal justice system (a particular risk for those who are racialised as not white). ¹²

Bystander video might be considered particularly susceptible to the individualising distortions that Spade names as matters of concern, since it tends to be magnetised by spectacular instances of violent conduct involving individual transgression. Indeed in 2013, there were various attempts to specify the assault on Jackson Reed as an isolated instance of ‘procedural stray’ whose public relevance was further dissimulated through privatised settlements and internally conducted investigations. One of the strengths of Ellis’ analysis is its use of narrative criminology to demonstrate how the meanings of the footage had to be storied into existence in a dynamic process of representation and contestation to materialise as evidence of institutional, structural patterns ‘rather than as so many isolated incidents’. ¹³ In what follows I draw on my own experience of this event to extend its storying in directions that strive to cut through some of the conceptual enclosures and sociopolitical segregations that are a feature of political cultures where ‘identity-based rights claims are a standard media frame’. ¹⁴

Legitimate subjects?

I came of gay age in Sydney in the late 1990s and my early participation in this culture gave me the impression – mistaken or otherwise – that police were on my side. I understood myself to be a beneficiary of the relationships that gay and lesbian advocates painstakingly brokered with police over the 1980s and ’90s (a relation Ellis well describes as ‘conflicted intimacy’) ¹⁵ as well as reforms made to NSW anti-discrimination law over the 1980s that constituted us formally as citizens with legal rights and protections. When the Sisters of Perpetual Indulgence exorcised the Darlinghurst police station of the ‘demon of homophobia’ on the occasion of its decommissioning in 1987, the small group of police who gathered to watch the event could do little but look bemusedly on. ¹⁶ So my feeling wasn’t entirely unjustified, just the feeling of a middle-class white guy in Darlinghurst.

I remember the precise moment this feeling changed. During the Gay Games 2002, the sight of a troop of eight uniformed police officers walking up Oxford Street with a drug detection dog in front had a chilling effect on the world I thought I knew – the world that had sustained me and made optimism possible. The realisation was profound. Suddenly, my friends and I – and indeed any participant in gay dance culture and subcultural community – were constituted as suspect rather than legitimate recipients of state care and protection.

Over the next two decades the police use of sniffer dogs to patrol gay events, venues and neighbourhoods grew in intensity and scale. In 2009, police use of dogs to patrol the Mardi Gras party was so aggressive that barrister Kathy Sant wrote a letter to the Sydney Star Observer comparing the situation to the first Mardi Gras protest in 1978 where comparable numbers of people were arrested. ¹⁷ The next year I volunteered for a cop-watch operation established by community legal centres to monitor the policing of the Mardi Gras party and support patrons. It was harrowing work in an emotionally tense environment, hardly conducive to feeling festive.

Over time the cumulative effects of these police operations led many of my peers to abandon socialising altogether. If they wanted to party, they began to do so at home, making use of new apps like Grindr and newly available stimulants like crystal methamphetamine. I had long been familiar with the harm reduction maxim that punitive policing drives drug use underground where it assumes riskier, more dangerous forms. But here it was, happening around me, in configurations that for many led to isolation, depression and a severe shrinking of social worlds. ¹⁸

I became involved in research and policy work as well as grassroots activism that tried to call attention to the deleterious impacts of drug dog policing and bring an end to these operations on the basis of harm reduction principles – but to little effect. Steadfastly attached to their four-legged friends, NSW decision-makers persist to this day in ignoring not only two decades of evidence collected by public health experts, ¹⁹ but also the considered recommendations of the NSW Ombudsman, the NSW Deputy Coroner and the Special Commission of Inquiry into Crystal Methamphetamine (2020) to cease drug detection dog operations entirely at relevant events and spaces. ²⁰

A perception emerged among my peers over this time that, despite their ostensible grounding in harm reduction principles, community organisations were reluctant to pursue or tackle this cause due to their reliance on state funding as well as the difficulty they encountered articulating the connection between gay community formation and illicit drug use in affirmative and normatively acceptable terms. ²¹ Meanwhile, police viewed reports of increasing homophobic and transphobic night-time violence in Darlinghurst through the prism of ‘antisocial behaviour’ and ramped up their use of drug dogs to patrol this precinct, leading to further closures of queer venues and spaces. ²²

With 1000 extra officers deployed to police the event, I remember as particularly intense the atmosphere at the 2013 Mardi Gras. I volunteered to monitor the drug dog operation at the main party again that year – an exhausting and demoralising experience that produced hours of what our supervisors later described as ‘incredibly boring’ footage. These operations are sanctioned by law, after all, and the line that distinguishes illegal from legal strip searches is practically impossible to capture in the format of smartphone footage. Indeed, the bulk of social and state violence that impacts queer and other social minorities is legally sanctioned, unspectacular and entirely routinised, and does not take the shape of dramatically transgressive individual action inflicted on normatively legible victims. ²³

So, when the bystander footage of Jackson Reed’s assault began to circulate, the effect was galvanising – and not just because of its horrifying brutality. All of a sudden, there was evidence of the pervasive aggression many had experienced, in a format capable of bypassing the cosy relationship between police and traditional media and not get caught up in the sometimes opaque negotiations of interagency diplomacy. The feeling was electric. For the first time in years, grassroots community was leading the charge without being hamstrung by technocratic niceties or waiting for organisationally officiated responses. Ellis plots the interference that bystander footage can create for these obduracies with fine-grained precision. ²⁴ Among the claims of those who mobilised most rapidly to protest the situation, I remember demands for an independent rather than internal investigation of police conduct; an end to police violence and aggression including drug dog operations; and a name-change from Police Force to Police Service. At the rally and the subsequent community forum, considerable narrative labour (and a certain degree of personal risk-taking) was required to keep drug dog policing in the frame as a technical pretext for, and partial catalyst of, the wide-ranging aggression, intimidation, bullying and humiliation that queers had encountered from police over this time.

Police and their publics

To its credit, Policing Legitimacy does not treat bystander video as objective evidence: an isolated presentation of the unmediated facts. If such footage is to effectively cut through the relevant information monopolies and strangleholds, Ellis observes, it must be storied in ways that tap into ‘legacy scandals linking current police practices to past police transgressions’. ²⁵ But there are further questions that might be posed here: who the footage matters for and why, and how best to contend with the discourse ideologies of publics. ²⁶ Recall the fate of the 1989 Rodney King footage: well known for sparking mass protests, legal defence for the police nonetheless managed to persuade the jury in court that the (black) man lying motionless on the ground, kicked repeatedly by police, posed some kind of threat to the police and ‘the public’. As Judith Butler argues, ‘there is no simple recourse to the visible, to visual evidence, … it still and always calls to be read.’ ²⁷ Instead, ‘an aggressive reading of the evidence is necessary,’ that dislodges the identification of ‘the public’ with the police in the same move that it casts racialised bodies as only ever posing a threat. ²⁸

In the moments leading up to the assault on Jackson Reed, a similar identification between police and ‘the public’ was enacted, although in this case it took HIV infection as its constitutively endangering ‘outside’. When accounting for his actions, the primary perpetrator of the violence against Jackson Reed stated,

I placed my foot on his back to hold him down as he was bleeding and I didn’t want to be contaminated nor did I feel safe getting down with the crowd around us. ²⁹

This account reactivates homophobic tropes that identify queerness with what Simon Watney called ‘the spectacle of AIDS’ and constitutes both as dangerous threats to the ‘general public’. ³⁰ Here, the general public is constituted as a homogenous entity composed entirely of heterosexual family units. Perhaps this is why I felt less than reassured when, in response to the Sydney Lord Mayor’s call for police to tone down their act over Sydney World Pride 2023, ³¹ the police commissioner reasserted their plan to conduct highly visible operations throughout with full involvement including the Public Order and Riot Squads, Operations Support, the Dog and Mounted Police Units, in order ‘to keep the community safe.’ Which community? Safe from what?

The question of who counts as ‘the community’ (or public) and who or what is constructed as a threat to it must be kept alive. Who do different publics identify with in today’s complex media ecologies? As digital footage makes its way through various publics, who counts as an endangered party worthy of sympathy and protection, and who/what is constituted as abominably endangering? In March 2023, the efforts of Victorian Police to ‘keep the community safe’ consisted of pushing, shoving, encircling and pepper-spaying members of the crowd who gathered in support of transgender people while a group of neo-Nazis were allowed to assemble behind police lines and perform a lengthy succession of Nazi salutes on the steps of Parliament House. ³² On 26 January 2022 (‘Australia Day’), NSW police played to a similarly constituted national-hegemonic public by conducting a drug dog operation at the WugulOra ceremony, an occasion which mourns the brutal and ongoing dispossession of people, land and culture perpetrated by European settlers throughout the history of settler-colonialism in this country. ³³ ‘Any discussion of the policing of sexuality and gender cannot be divorced from an understanding of policing as a settler colonial project,’ writes Australian criminologist Emma Russell, arguing that the coalitional aspirations of queer politics and queer studies require ‘broader recognition of the violence of policing that is continually visited upon the bodies of Aboriginal people and others marginalised by their race, class, disability, gender, sexuality, or any combination of these’. ³⁴

Supercharged by smartphones and social media, sousveillance has the capacity to disrupt the stubborn obduracies of police-state-dominated public relations. But to get this sort of traction, bystander footage must be contextualised by counterpublic frames of view, within larger social movements capable of articulating how the dramatic incidents that it captures in bit form reflect, connect and intersect with longer, less spectacular, racialised, structurally routinised, heterosexist patterns of violence, degradation, segregation, dispossession, intimidation, neglect and incarceration. ³⁵ The standard media frame of identity-based rights only gets us so far in terms of making these connections. A queer criminology that restricts its ambit to legible, pre-established, singularising axes of sex/gender identity (‘LGBTQI’) may end up glossing over those harms and injustices (drug policing, border patrol, structural racism, and endemic, uneven carceralism) that manage to bypass the rights accorded to minority identity to compound their devastations in the name of ‘public’ order. ³⁶