A question
Why is what Larry Craig allegedly did (and pled guilty to) a crime? Why is making an overture at the person in the next bathroom stall, by touching your shoe-clad foot to their shoe-clad foot and waving your hand under the stall barrier, a crime? Even if he was definitely attempting to send the signals that he'd like to have a little sexual contact with the person in the next stall...why is that a crime?
I understand why having actual sex in a public restroom could constitute a criminal act, particularly if it were visible and therefore resulted in public indecency or exposure. And obviously an overture that involved groping or offensive touching of the person in the next stall could rise to the level of sexual assault. But why is the act of sending the apparently universal code for "how 'bout a beej?" a crime?
Here's why I'm asking: if we had unisex restrooms I sincerely doubt that such behavior between men and women would be classified as criminal. And I doubt that if women were into cruising (and who knows, maybe they are, I'm not a lesbian so I'm not down with the latest secret handshakes they may or may not employ) that there are female undercover cops hanging out in women's bathrooms watching for signs of girl-on-girl hookups through the stalls. So why is this behavior criminalized?
Is it because we need to protect men from their rampant fear, while whipping out their penises to pee at urinals, that they won't have to deal with uncomfortable attention from gay men? And if so, is that seriously worthy of criminal prosecution and law enforcement resources? Women get unwanted and potentially uncomfortable propositions from men all the time in a variety of places but we don't go around expecting the cops to stake out the entire world to prevent those overtures or arrest people who make them when there isn't a violent or seriously dangerous element to them.
Again, I'm not denying that the act of having sex in a public restroom is probably criminal in most jurisdictions and that police officers have a basis for patrolling restrooms to prevent that. But we're talking about a guy whose job it is to sit in an airport restroom stall and look for hand and foot signals and then to arrest guys who make those signals even before anything remotely lewd has been said or done. And I just think that's incredibly silly.
It also makes what Sen. Craig did in pleading guilty even sillier since I'm pretty sure every single person in America would have understood if he took the "this was all just a strange misunderstanding due to an overzealous cop" approach to getting the charges dismissed. It's a dumb charge, but pleading to it is even dumber.
11 comments:
Could not agree more. I have been thinking the same thing all day. Everything about this is absurd.
A great post, and a great point that so far I haven't seen discussed anywhere else.
It's an interesting point, and I think I basically agree with everything you say, but I will point out that he apparently also was looking into the guy's stall and making hand gestures or something for like 2 minutes before he even went into the stall. I think I could see that being illegal just on invasion of privacy grounds.
And I suppose you could attempt to justify the illegality of the "trolling" on the basis that he was trying to commit public lewd acts, even though he didn't succeed because his partner was unwilling. I share your skepticism, however, that such behavior would be treated as illegal in a heterosexual context.
In Idaho...
1990 - An appellate court, following the lead of many other states, decides that sexual activity occurring in an enclosed restroom stall is constitutionally protected. The last name of the man arrested for masturbating in the stall was Limberhand.
However, I disagree with Billy's last comment agreeing with Sara's scepticism in a heterosexual context. It's called sexual harassment, right? Aren't unwanted sexual advances - assuming that Craig's actions constituted a sexual advance and that the cop didn't want them - considered illegal?
Dale: the short answer is no, unwanted sexual advances are not criminal absent something that makes them sexual assault or battery (for example, putting someone in imminent fear of bodily harm or physically touching them). What you're thinking of is civil liability for sexual harassment.
I am not aware of a crime for invasion of privacy either but maybe I'm just not thinking of it the right way or maybe I've forgotten some obscure Georgia code provision now that I have the bar exam under my belt. But I don't think peeping into someone's bathroom stall sounds criminal either, again absent something that makes it rise to the level of assault or criminal harassment, which has a much higher standard than civil.
If unwanted sexual advances in public places were criminal there would be an awful lot of men out there getting arrested for the things they say and do. But as the law currently stands in most jurisdictions, a man can walk up to a woman, as her if she's into kinky stuff, and then lean over and whisper into her ear that he'd really love to take her home and assfuck her with the dick of a dead bear (trying to think of something that would hopefully be universally offensive) and nothing about that scenario is criminal as long as he does not touch her and does not put her in imminent fear of bodily harm. Creepy as hell, but not criminal.
I also doubt that a man would be prosecuted for suggesting to a woman at a bar that they go screw in the bathroom. And basically that's what Craig is accused of doing. I've personally received that invitation on more than one occasion from men (yes, I hang with some classy mofos) and nothing about it struck me as remotely criminal. So why is it criminal if a guy suggests it to another guy while they are in adjoining restroom stalls? The sex itself would be criminal but the suggesting it doesn't seem to be.
Figleaf had an interesting take on this, too...
I say this not least because I think the police in progressive cities like Minneapolis, let alone in more, um, "sheltered" cities like Titusville, Florida feel obliged to setup anti-cruising sting operations in public men's restrooms is that most straight men, fueled perhaps by our own sense of heterosexual entitlement towards women, don't realize that in the gay community not only does "no mean no," no *also* means "no hard feelings." And since there's none of that frustrated/outraged sense of outrage between gay men the way there seems to be between straight men and women, all you really have to say when proposition, really, *really,* is "no thank you."
Good food for thought, as always.
hmmm, I thought there was such a thing as "criminal sexual harassment" at least there are definitions for it around... http://nejamelaw.com/criminal-law/criminal-offenses.html#SexualHarassment Nevertheless, Idaho does have a adultery law on the books. Do all crimes automatically have an "attempted" version or do you have to legislate "attempted" adultery too? I guess he's an attempted adulterer regardless of the gender of his target.
No matter how you slice it, the guys slightly hypocritical given some of his earlier anti-gay stances, no?
I think if a state criminalizes harassment then they usually require a much higher standard than in the civil context--you have to have committed sexual assault or to have put the person in imminent fear of death or bodily harm, something along those lines. Arugably what Craig did wouldn't even fit a civil definition but it certainly wouldn't fit a criminal one because he never touched the guy beyond his shoe and never said a lewd word to him, and any hand or foot gestures were certainly not threatening or obviously lewd.
I think he's a total hypocrite, but I just don't think that what he did should be criminal. I also think it's total BS that the Republicans are pretending they are calling for his resignation because he pled guilty to some bogus crime. They want him to resign because he's been exposed as a gay and they can't have a gay in their party. ("A gay" being used hopefully in obvious sarcasm, but these days who the hell knows...)
Sara, peeking into a closed bathroom stall seems to fit the Peeping Tom statute we have in Georgia (16-11-61). That's how our department's charged people who've peered into stalls or showers other people were using. (But, yeah, there are various criminal ways to invade another's privacy...)
It looks as though Craig was charged similarly, with a count of invasion of privacy. I didn't understand the disorderly conduct charge, since I was thinking of how GA defines it, but Minnesota apparently includes acts which can "disturb" others. Given the way you're analyzing this situation, perhaps some could make stronger arguments that unwanted sexual advances that persist beyond a person's "No thank you" are therefore knowingly done to "anger, alarm, or disturb" someone.
OK, I could see trying deliberately and repeatedly to see into an occupied bathroom stall as being a crime in the right circumstances. But my problem fundamentally is that this prosecution and the stakeout by this cop in general rely on some extremely subjective judgments about the intentions behind some seemingly innocuous behavior.
For example, I know I have been able to see through the crack in the door of a restroom stall before and see the person inside, even if I didn't actually sit there and stare. Did I commit a crime? At what point does it become purposeful or seedy enough that it's a crime?
If I stuck my hand under the stall divider, and my intention was to ask for some toilet paper, but on the other side was a cop thinking I was trying to give him a handjob, should I be prosecuted for that?
And again I go back to why of all the things for law enforcement to focus on, they decided to dedicate this many hours of manpower to staking out public restrooms looking for sex signals. As I said above, I understand patrolling them to catch people engaged in actual contact but this goes far beyond that. Setting up a trap to catch the cruisers before they have done anything even remotely lewd just goes well over the line for me.
Well, perhaps stall-peeking becomes purposeful or seedy enough when it occurs repeatedly and for an extended period of time. It's similar to public indecency and a blouse accidentally falling off a breast or a guy in shorts crossing his legs in a certain way, I suppose.
I also suppose this is the difference between probable cause and evidence beyond a reasonable doubt.
As for dedication of manhours, a fairly large department is not that hindered by having one officer, even a sergeant, sit in a toilet stall for hours. A smaller department is just not going to waste their resources in that manner, and that this department elected to perform this undercover operation shows it either has the manpower to spare or has enough public (or, perhaps, certain persons offered) complaints, or both. Even so, a stakeout that results in an arrest for a certain kind of crime doesn't mean that the stakeout was looking for that crime: oftentimes, sitting still in an area will net you various kinds of crimes. So, it may not have been that the officer was specifically there to catch people soliciting, but this was something that fell into his lap, so to speak.
Still, I don't disagree with you that blowjobs in bathrooms is neither the end of civilization nor the cruelties of violence or abuse. That this is about minimizing the amount of gay sex in the world is something to take note of.
What I find curious is the complete lack of any mention of the dialogue that had to have taken place.
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