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Naked naivety or political statement?

August 2, 2011

Naked naivety?

Now here is the tale of Olexandr Volodarsky, Ukrainian blogger and “political activist”.

Before we wander into the details of the case, which of you dear readers, would deem it acceptable for a man and woman to appear completely naked directly outside the Houses of Parliament, the White House or Capital Hill and then simulate sex acts?

If we were of the mind to carry out such actions, would we reasonably expect to get arrested, charged and appear in court as a result of simulating sex, naked, directly outside the seats of our political establishments or would we expect no action from the law?

Well, naked simulated sexual acts directly outside the RADA in central Kyiv and in broad daylight is exactly what Mr Volodarsky, and a female accomplice,  carried out in a political protest to determine where morals reach the point of criminality in 2009.

Seemingly, Mr Volodarsky did not think prosecutors would charge him as it was a “victim-less crime”.   “I didn’t destroy property, I didn’t hit anyone, I was convicted for committing a victim-less crime, which can’t be considered hooliganism.”

Really?

Whilst it is often folly to compare laws of sovereign nations, there is generally a parity amongst them despite the specific words used.

Now those of us from the UK would fully expect him to have been arrested, to have been charged and to have appeared in court whether the charges were indecent exposure or Section 5 of the Public Order Act, an Act as a whole that deals, generally, with “hooliganism”.

In fact, Section 5 of the UK PoA covers pretty much anything that would alarm, harass or distress anybody witnessing it whether it is carried out in public or can be viewed by somebody in a public place even if the actual act is carried out in/on private property.  A general rule of thumb would be if your granny can see it, and is your granny would find it distasteful in any shape or form, then it is quite likely to be a crime under Section 5 of the PoA.

Would your granny find this acceptable?

The fact that your granny may not witness it is quite irrelevant, the point is she could as it was committed in a public place or could be viewed from a public place.  As such it can be a victim-less crime in the UK as well and still result in arrest, charge and legal recourse.   The victim, as such, can be society in general and the morals and ethics it accepts to be guided by as a majority.

As a result of his misguided idealism and will to test the boundaries, Mr Volodarsky spend over 6 months in jail and is now appealing to the ECHR for wrongful imprisonment and is being backed by NGO’s such as Stop Censorship and Ukrainian journalists who are saying “Whatever the aesthetic value of the performance against the Verkhovna Rada, this is not a matter for deprivation of liberty… this cannot be grounds for criminal prosecution.”

I am quietly confident that the ECHR will not allow his appeal.  I would also suggest that, on the assumption (dangerous ground to make assumptions) that part of the Ukrainian “Hooliganism” laws would move on a sliding scale similar to the UK Public Order Act (and completely discounting the Indecent Exposure and Gross Indecency laws of the UK which he would most certainly have been in breach of) that his actions are nothing but naive to be generous to him.

I would also be quite amazed if there is a nation on the continent of Europe that would not have a law to prevent its citizens copulating, or pretending to do so, naked in a public place (regardless of whether it is directly outside the building housing the nations legislators and politicians).  I feel the NGO “Stop Censorship” is rather demeaning its own position when there are far bigger and better battles to fight in Ukraine.

Whether this naive act justified a 6 month jail term rather than a fine is a matter for a judge in any nation.  Some courts in the UK would take a far dimmer view than others should this matter go before them.  If the ECHR are to rule in his favour in any shape or form (and I doubt they will) it will be over excessive punishment rather than being convicted of a non-existent crime.

That said, again using the UK legislation as a rough guide, the penalties for offences under Section 5 PoA are a fine of GDP 1000, Indecent Exposure can be 2 years imprisonment.  If this incident had occurred in the UK, he would most definitely be guilty of either/or both offences depending on which way the CPS wanted to pursue the matter.

Much will depend on the devil in the detail of the Ukrainian “Hooliganism” legal framework of course, however you cannot see how there is no law preventing such….ahem…active exhibitionism?

Maybe, if he loses his ECHR appeal, he should strip naked and pretend to have sex with a naked woman on the steps of the ECHR court in Strasbourg……and see what happens next.

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