Monday, September 10, 2007

Issues Beyond Larry Craig

Idaho's own Sisyphus, barely-still-Senator Larry Craig, has been condemned to carry his toilet association with him. Certainly, he has terrible and discriminatory politics, as well as being in a position to help implement them. Yet, beyond all his current dishonor, dishonesty and clumsiness, he has, if you pardon the expression, opened the door on police ethics and investigative techniques.

Now that his guilty plea to disorderly conduct has become known, Craig scrambles to withdraw that. Of course, were he to succeed, he would not begin to clear his name as the expression goes. Only the most doctrinaire could believe that he was doing anything other than trying to hookup for sex in a public place, a bathroom stall in a busy airport. The implications of that are largely a matter for him and his wife to create their own plea bargain and sentencing.

I believe that people would feel some sympathy or even empathy were he not so deeply into denial and delusion.

Almost certainly, his appointed replacement will share his politics. Idaho and the GOP right wing just loses some seniority.

Many of us who use phrases like victimless crimes and police entrapment kick around the collateral issues. A tip of the toupee to Mark over at QueerToday for a pointer to a great overview on these by Max Follmer in Huffington Post.

Meanwhile some righties have made absurd leaps. Some write that because it appears he was just trying to have sex with the cop, it shouldn't be a crime — they didn't actually have a public sex act. Others even write that he wasn't a hypocrite about homosexuality because he didn't ask the male cop to marry him while he has a strong anti-same-sex-marriage voting record, as though his discriminatory and mean-spirited votes were not anti-gay. Some say that cops should be finding terrorists instead, overlooking what vice cops are charged with doing.

Fortunately for us, the New York Times seem to have its own toilet reporters. They did, if you pardon, the dirty work of gathering background on the solicitation of gay sex sting operation at the Minneapolis airport johns. Among their facts is that there had been public complaints about this and follow-through activity in these restrooms, prompting the operation. Another is that in three months, the officers arrested 40 men in the sting. In other words, it was an issue and Craig was just another apparent cruiser caught in it.

The NYT includes a chart of what the 40 were arrested for, what they were prosecuted for, and what's happened with the cases through 9/5/7. The charges and number prosecuted on them are:
  • Interference with privacy — 14
  • Disorderly conduct — 10
  • Both of the above — only Craig
  • Loitering — 8
  • Indecent exposure — 4
  • Not yet charged — 3
The most serious of the offenses is interference with privacy, a gross misdemeanor by state law. Bathroom cruising was not the seeming purpose for the law, which was strengthened in 2005. Among the relevant sections of this carefully defined statue is:
(c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window
2.2 or other aperture of a sleeping room in a hotel, as defined in
2.3 section 327.70, subdivision 3, a tanning booth, or other place
2.4 where a reasonable person would have an expectation of privacy
2.5 and has exposed or is likely to expose their intimate parts...
This law actually exists to counter those who might use hidden camera in women's restrooms and only recently was applied to such cases as Craig's. There are debatable aspects, but one that is not is that a reasonable person would expect privacy sitting on the can.

Yet, in our overly lawyered world, not everyone stung by this pays the fine as Craig did. The NYT reports that only 10 pleaded guilty. Another 28 chose a hearing. The other two cut deals that suspend prosecution and clear the record in a year of they are not similarly charged.

The Times reporter, Duff Wilson, spoke with some of the lawyers fighting these charges. The main assault of Jeffrey Dean, who is defending four of the men, is, "There can be no invasion of privacy of a person who is inviting the conduct. The undercover officer, by his on account, sits there in an adjacent stall and signals the person that he wants this contact."

Back to the reasonable person, I don't believe that person would interpret the arrest and questioning of Craig that way. Then again, that is up to a judge or judge and jury if it comes to that to decide.

Craig seems to have earned his double charge by his touching. He apparently played footsy under the stall to come on to the cop. He also seems to have put his hand under the stall repeatedly to advance the contact. Also previously, he was apparently peeking through the door of the stall where the cop sat.

With all that, we come to the political problems. Enforcement of this law centers on gay men in such stings. In addition, these stings did not advance to where those arrested tried to fellate the officers, and rarely had those arrested exposed themselves in their come-ons.

So, was the underlying offense soliciting sex in a pubic place when it did not get to the point of sex? Is this law too broadly applied and only against gay men? Are the decoy cops "causing" the men arrested to behave in illegal ways?

Private sex clubs are one kind of locale. Free public restrooms have different rules and expectations. It may be a thrill for some people of either gender to perform sex acts where they may be observed, caught or overheard. Yet, I think everywhere such public activities are illegal at the misdemeanor level.

We can certainly let Craig pretend that he is 100% heterosexual and that rubbing the foot of the cop under the stall partition was totally accidental, and that repeatedly putting his hand under that partition was in attempting to pick up paper from the stall floor. Again that is his and his wife's concern.

I do wonder though about the professional ethics of police officers sitting on toilets in case someone wants to hit on them, even in a restroom where public sex has occurred and people have complained about it. This would have much cleaner if an officer had simply walked into the stall to use it and someone actively and plainly requested a sex session. Likewise, if an officer entered a restroom and became aware of two men having sex in a stall, there is an obvious violation.

That is not exactly what happened and the lawyers apparently will try to make the most of it. According to the Huffington Post piece, that may be a hard sell in court:
Jon Davidson, legal director at Lambda Legal, the gay and lesbian public advocacy law group, said that it is very difficult to prove entrapment because a defendant has to show that it was the undercover officer's idea to commit a crime, and it was something they were not ready and willing to do before the officer induced them.
We can certainly understand why someone who felt compelled to seek sexual contact in a public restroom would feel tricked and angry if the lust object turned out to be a cop. We hear the same complaint from men arrested for soliciting prostitution from undercover cops on the street. In these recent cases in contrast, there was no plain offer of money and foot and hand signals substituted for words and leering.

So, we remain wondering, is the intent of the Minneapolis-airport sting:
  1. To stop men from having sex in public areas
  2. To save people from being hit on in johns
  3. To make vice hits and look busy
  4. To entice the weak into acts that they normally would not do
There will decidedly be a spotlight on this and similar operations. Craig copped a plea and paid a fine, made a huge deal claiming both innocence and heterosexuality, made a huge deal of saying he'd resign, made a huge deal of saying he might not resign, and made a huge deal claiming he'd try to withdraw his guilty admission. He has focused attention on sex in public stalls, on the stigma still associated with homosexual activity in his circles, and on sex stings beyond prostitution.

Ass that he seems to be, he will likely continue force this issue and his role. It will be quite a distraction from all this if other men come forward claiming that he solicited and partook of sex with them. The key issues of what constitutes reasonable enforcement versus entrapment is enough to start with.

We can let the politicians and their party officials figure out, as churches have had to, what to do with moralizers who engage in adultery and other behavior they publicly decry. I don't really care, but it must be really tough to be a self-identified social conservative with such representatives.

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