The ancient military offence of “disgraceful conduct” – otherwise known as “conduct unbecoming” – lives. You probably think you don’t know about it, but you actually do. You’ve been hearing about it all week.

One of its most recognisable, yet not well known, incarnations lives in rule 2.3(a) of the AFL Rules; “A Person must not engage in conduct which is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute.”

Izak Rankine just fell foul of it. (More on him later).

So did Damian Monkhorst. Remember him? (More on him later too).

But on Wednesday this week it caused a seismic shift, with it triggering the coming out of Mitch Brown, the first out bisexual male player in the AFL, past or present.

The offence also lives in the rules of many organisations, in the context of the contract or rules of employment. All of the Police services across the country, each of the three arms of the Australian Defence Force, the Public Service of each of the States and the Commonwealth, and of too many corporate organisations to name, include it as a rule with serious consequences for breaching it.

Why?

Because, just as it did at its institution, it gives them an ability to protect their corporate brand. But an unexpected benefit of the modern incarnation of it is that it operates to protect all members of an organisation too.

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The modern day use of “conduct unbecoming” as an offence brings the ancient offence full circle: the military offence was used back in the day by the British armed forces to stop gays in the military from having sex with each other. It started its life, largely, as an anti-gay offence.

“Disgraceful” in the ancient offence was a legal term of art. It included the word “indecent” in its ordinary meaning. In the 19^th century the Judge Advocate of the British Fleet thought that retaining the word “indecent” as part of the offence was important because, he said, “every indecent offence which can be committed on a ship is almost certain to be homosexual, because no female  personnel are present”.

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Not everyone was happy with the offence being used that way. Some thought that guys having sex with guys should be punishable as usual under the civil law, with its higher standard of proof. That is, there were other laws that dealt with all this, so why have a separate military offence of conduct unbecoming?

In that vein, Parliament introduced the offence of disgraceful conduct in the Mutiny Act 1829 to criminalise certain conduct and give the courts martial power to deal with it. “Disgraceful Conduct” was “confirmed vice, and all unnatural propensities” among other things.  The term “unnatural propensities” included “crimes which the English law declares unfit to be named among christians and which military law does not stain its annals by any recognizance’”.

So, full circle.

As we have seen over the past week and a bit with Izak Rankine, the offence is now used to protect, and not to punish, LGBTIQA+ victims. But it has also been used to protect other minorities.

In 1995 Damian Monkhorst racially abused Michael Long during the sacred Essendon-Collingwood ANZAC Day Match. Monkhorst breached the then version of rule 2.3(a) – it was “disgraceful conduct”, conduct unbecoming.

When Monkhorst sledged Long it created a national outpouring. It also embarrassed the AFL, which instituted its anti-vilification policy in response.

The offence did its work; it gave the AFL an ability to sanction Monkhorst, and showed the public that the AFL was not having anything to do with racial slurs. It didn’t protect Long right then, but it’s protected others since.

Likewise, this week, the offence did its work. It allowed the AFL to issue a sanction and said to the world that the AFL was not having anything to do with homophobic slurs.

Isn’t remarkable how far things have come?

The offence that was once targeted at “unnatural propensities” has morphed into a protection against vilification.

Offences, rules and regulations can help or they can harm. And they can change over time. Reform can happen gradually or at breakneck pace, depending on conditions and cultivators.

At Pride in Law, a group of LGBTIQA+ lawyers I am involved with, we endeavour to cultivate such reforms in the law, confronting pressing issues affecting the LGBTIQA+ community and allies, for the benefit of the legal profession and society more generally from our unique legal perspective.

Standing back from this long history, the lesson is that words matter. For some they are benign. For others they are a dagger to the heart. For some they can result in tragic consequences.

It doesn’t matter whether someone can “take” a slur or not. The law takes a victim as they find them. Slurs on the football field, in the workplace, and elsewhere in our community can destroy lives, and are apt to create a culture of intolerance. In many – if not most – cases, it will not be apparent to the person delivering the slur just what the consequences delivering it will be.

So much is clear from the revelations of former West Coast Eagle Mitch Brown this week. Brown has made history by becoming the first male AFL player, past or present, to come out as gay or bisexual. It is a monumental thing. It shouldn’t be, but it is.

The Daily Aus reported Brown’s account of active hostility among his teammates towards gay men, and “countless” homophobic comments directed at him on the field – not because his sexuality was suspect, but because it was, apparently, the ultimate insult. It contributed to Brown not coming out for years, and certainly until his career was over. These are patterns that repeat in spaces other than football, and show the work that still has to be done.

Rather than dwell on the words that cause harm to our communities, we should unequivocally celebrate the words of Mitch Brown:

“I don’t believe that this is about me. It’s not about Mitch Brown being the first at all. For me it’s about sharing my experience so that others can feel seen. … What matters to me most is a sense of change, a movement created where you can be anyone and feel like you can be anyone and be safe in any environment here in Australia.”

Remarkably, the genesis of how we have come to a place in public life, whether it be in the sporting world, the corporate world, or in public service, is in this ancient military offence that was, by accident or by design, initially used to prevent the very change that is now (largely) occurring.

Samuel Joyce is a Barrister at Andrew Wells Chambers, and Advocacy Officer for the SA Chapter of Pride in Law. Read his other InDaily columns here.