Senator Larry Craig, Free Speech Poster Boy?
Should Senator Larry Craig turn to the First Amendment to defend his toe-tapping rights?
Idaho Senator Larry Craig's political career may be over, but could the senator secure a place in history by fighting his guilty plea and helping bring an end to the unconstitutional practice of criminalizing toe-tapping? Maybe a brilliant lawyer from the Lambda Legal Defense Fund could help him out. After all, civil liberties lawyers have been fighting these types of cases for as long as cops have been casing public restrooms.
Not all that much has changed since G. Harrold Carswell, a married man Nixon had nominated for the U.S. Supreme Court, was arrested in 1976 for making an "unnatural and lascivious" advance on an undercover cop in a Florida shopping mall restroom. Law enforcement has a long history of targeting gays and lesbians with disorderly conduct prosecutions like the one that caught Craig, and not just in public restrooms known for anonymous gay hookups, but also in places like gay bars and clubs.
Many of the old prosecutions were based on sodomy laws, on the grounds that a man who makes a pass at a man is soliciting an illegal act, regardless of where it's performed. But consensual gay sex isn't illegal anymore, thanks to the 2003 Supreme Court decision in Lawrence v. Texas (though places like Virginia are still trying their best to ignore the decision). Though consensual gay sex may now be legal, asking for it, in most states, still isn't. No high court in the land has yet declared that gay and lesbian citizens have the constitutional right to make a pass.
That's why Craig could be arrested for tapping his foot, which in itself can hardly be defined as a crime. He was soliciting—though not actually having—consensual sex, something straight men do to women, in public places, all the time, in far more obnoxious ways and without fear of prosecution. What's troubling about his case, too, is that there's an assumption that he was looking for sex right there in the stall, which would clearly be illegal if he'd gone through with it. But what if he wasn't? What if he had planned to go somewhere more private, which would be legal? There's really no way of knowing, since he wasn't arrested for having sex—just asking for it, however nonverbally.
Had Craig shown the good sense to get a lawyer after his arrest, he could have marshaled some lofty First Amendment defense arguments that might have helped not just him but an untold number of men whose lives have been devastated by these kinds of undercover sting operations. As in most states, the Minnesota statute on which Craig's arrest was based defines disorderly conduct as engaging in indecent or obscene conduct that someone knows or has reason to believe will cause alarm in another person. Foot tapping alone isn't likely to alarm anyone, especially not someone who's already indicated that he's open to the invitation, as the cop did in Craig's case. The last thing most gay men want, in fact, is to hit on a straight guy who's not interested. The foot tapping and other hand signals are designed specifically to avoid a scene.
Civil libertarians have been making these arguments in entrapment cases for more than 40 years, though without much success. (For a stellar legal history on this subject, check out Courting Justice: Gay Men and Lesbians v. the Supreme Court, by Joyce Murdoch and Deb Price.) Back in the 1960s, a New York Civil Liberties Union attorney asked the U.S. Supreme Court to hear a case involving an undercover cop who'd let a man in a gay bar rub his thigh without objection and then later arrested him for disorderly conduct. Morton P. Cohen argued that his client's conduct, and that of others like him, hardly met the legal definition of "disorderly." "The majority of homosexual solicitations are made only if the other individual appears responsive and are ordinarily accomplished by quiet conversations and the use of gestures and signals having significance only to other homosexuals," he said.
The U.S. Supreme Court declined to take up the case, but eventually the New York City police commissioner saw the light and put an end to gay entrapment stings. Clearly, other states still haven't follow suit, now even 40 years later. Craig could use his legal fight to further the cause.
Ending the questionable law enforcement operations that caught Craig doesn't necessarily mean the public has to put up with sex in the stalls, either. There are other ways to achieve the same ends without violating anyone's constitutional rights. The now-ubiquitous surveillance camera—accompanied by a big sign announcing its presence—has worked wonders in D.C.'s public library (far busier hook-up spot, no doubt, than the Minneapolis airport), and would probably have worked just fine in Minnesota. (Okay, maybe it would simply violate everyone's civil liberties, but at least it wouldn't be singling out gays for special treatment.) And cops would still be free to arrest people for actually having sex in public—just not for simply asking for it.
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for the good of everyone involved your family friends and staffers get out,
I usually like what a read in MotherJones, but I must draw the line here. I vehemently diagree with the naive writer of this article. Yes, free speech is important, as long as you do no harm or injury to innocent people. Sen. Craig admitted crossing the line, making unwarranted advances toward another male in the restroom. To then draw a comparison that when a man and a woman engage in this smae behavior in a public area, it is acceptable is ridiculous. (I have had a heterosexual couple arrested for this recently.) They, too, would be prosecuted for indecency. Immorality is immorality. We, as a society, must stop making excuses for depraved behavior.
We criminalize speech and speech-related conduct all the time, without violating the First Amendment. As my con law teacher would point out, saying "Wanna buy some heroin?" is a crime if the person saying it actually intends to sell some heroin. The intent is derived from the factual circumstances. Craig solicited the officer with well-known signals, and when the officer responded as hoped, sent even more signals. He was not entrapped.
Sodomy isn't illegal, but bathroom sex is. There's no discriminatory intent against gays in these laws, because het couples can be arrested for bathroom sex too, and are. Cities with public unisex bathrooms regularly police them for prostitution, for example. You might disagree, but I don't find anything wrong with keeping people (of whatever sexual persuasion) from having sex in public restrooms.
Furthermore, in this day of greater acceptance for gays, anonymous bathroom sex is becoming a quaint relic of a closeted era, sort of like "bundling" for courting het couples. Why have bathroom sex when you can take someone home with you, or pick up a casual connection off Craigslist?
There's a difference between putting a camera in a public library and putting one in a bathrooom. I don't know about you, but I don't want a surveillance camera watching me take a leak. I can't believe your "solution" to this perceived discrimination against gays is an expansion of Big Brother's power to watch everyone even in their most personal moments.
Was Sen. Craig paying for gay sex or just asking for sex from a undercover cop? What exactly is the crime? If just asking someone to have sex with you is a crime, then I want EVERY straight (ugly) man who has ever asked to have sex with me, a straight woman, arrested.
Craig was convicted of disorderly conduct. The problem was not that he was asking to have sex, but asking to have sex in a public place, with an intent to follow through on the act.
Good for Arlen Spector! My respect for him has grown over the last decades, ever since its nadir with the Anita Hill debacle. Sen. Craig's life is a shambles. He deserves our compassion, Republican or Democrat, for the dismal poverty of self-respect that must come with soliciting sex in a filthy public bathroom.
I am a Democrat, but I believe that Sen. Craig deserves a fair hearing, and if he is guilty as confessed, he deserves our compassion and forgiveness.
Poor bastard. I cannot even imagine the agony of embarassment his children are going through in Ultraconservative Idaho. I would be much more comfortable if his Republican colleagues had said, "Let he who is without sin, cast the first stone".
This was a Biblical example of entrapment and although I think he is probably guilty of nasty business in public restrooms, I also believe that he shold have the opportunity to defend himself.
His Conservative friends should stand up for him and let him have his say. What a terrible conclusion to a long career in the Senate. I only wish that Sen. Craig had been more compassionate to others similarly inclinedl
I can list numerous first hand experiences with lewd behavior and sexual solicitations in public places(including being grabbed and groped, having my clothing pulled at, and vulgar descriptions of sex acts) all involving presumably straight men making unwarranted sexual advances towards me (a presumably straight woman). Now straight men are going to freak out because a dude in the next stall might tap his foot at them? Here's a hint: don't tap back, flush the john, wash your hands, and go about your day. When men start grabbing your ass and yelling "suck my dick" at you when you walk down the street, then you can complain to me about lewd behavior.
The problem for Lavatory Larry was that he was also charged with the more serious offense of intentionally peeping into an occupied bathroom stall.
The disorderly conduct charge is admittedly vague, but is often included to provide a plea bargain offense that doesn't specifically mention any sexual misconduct.
Also, if the plea were withdrawn and the case went to trial, the prosecution could bring in "experts" to testify as to what the toe-tapping and reaching under signals meant, as well as witnesses (assuming they could be located) that could testify that Craig knew what the signals meant.
Modus operandi evidence (MO) is admissable to prove intent, common scheme or plan, and/or lack of mistake. So if a witness came forward that testified that he had had a sexual encounter with Craig in a restroom somewhere and Craig had used those signals, it would show that Craig wasn't just acting a little strange.
I find it a little ironic that American society as a whole can place such emphasis on some politician and his sexual practices. News organizations waste hour upon hour on this issue, and won't spend more than a minute on the fact that Bush is responisible for bringing the country to its knees, and our soldiers battered to pieces... Given a choice, I'd take a homosexual repuglican over one whose stupidity kills people, and weakens us as a nation. Seems like everything is a diversion tactic these days. Will the democrats sway public attention away from this ridiculous issue and back to ending this horrible war? This should be a good gauge of the Democrats' sense of morality.
You can buy a cheap video/audio recorder (a few minutes worth recording time) for not a hell of a lot of money. Isn't it time for us to stop relying on the unsubstantiated and subjective word of a possibly homophobic police officer and start requiring some hard evidence?
Oh, and Craig was (possibly) *asking* for sex, while in the bathroom, not necessarily *asking to do it* in the bathroom. One's a crime. One ain't.
both the underlying "crime" and the idiotic way he handled it embarrassed his party, so they forced him to leave office. what is it about the rights to remain silent & have an attorney that a US sen. finds elusive?
the way he handled his arrest is one of the dumbest acts by a pol. since al gore & his idiot shyster david b. strolled into the supreme court and argued that the supremes had jurisdiction over the 2000 florida vote count--parroting the same logic as the republicans(!) to c.j. renquist, who must have been absolutely floored!
the constitution seems to indicate that florida (i.e., the state) had the final word. i voted for al but he was just too dumb to be pres. now, he's a scientific expert!
maybe larry c. can find a new calling, too!
I too find it difficult to believe that a U.S. Senator would respond to the charges so stupidly, especially after hearing him argue with the arresting officer so cannily that it seemed very believable that he was doing nothing aimed at solicitation.
It makes me wonder, as other recent mystifying PR choices by public figures have, if there weren't other greater pressures influencing his decision that we aren't going to know about any time soon.
I disagree, immoral sexual acts in public bathrooms,as well as attempting the same is placing children at risk. Common sence not a sexual dating service in these public rest rooms is in order here!
I suspect that the Senator's constitutional rights will be upheld. Afterall he has enlisted the assistance of a very "capable" legal team. However, his hipocracy cannot be righted by that very same "capable" team of legal eagles!
Hello Stephanie. I am genuinely curious about your "asking for sex nonverbally" argument.
So if this was a woman in a unisex bathroom, and it was a man peeping in at her through the closed stall door, and then reaching under the stall divider, you would not consider this lewd behavior? Sexual harassment? No?
Should men be allowed to peep on women and make unwanted sexual advances? Yes? No?
Stephanie,
Well done piece. Particularly fascinating how you explain that the attitudes grew out of now stricken sodomy laws.
In the weeks that have passed since this first broke, I would have thought that some man or men would have come forward with a story about sex with Craig. But there has not been a single one. And the Idaho paper's investigation couldn't produce a single credible source.
Does make one wonder if maybe, just maybe the guy could be telling the truth?
Besides, some of the things the cop alledges just don't seem to make sense. If he claims that Craig had his eyes at the crack of the door for two minutes (so close that the cop could see that they were blue) then it would be impossible for him to see Craig picking at his fingernails as the officer claimed.
Clearly this is a case that has many mystifying angles, hence the continued public interest.
But again, thank you for this thoughful analysis.
Linden, is there something I'm missing, where in all of this has there been any proof of intent?
I usually like what I read in MotherJones, but I must draw the line here. I vehemently disagree with the naive writer of this article. Yes, free speech is important, as long as you do no harm or injury to innocent people. Sen. Craig admitted crossing the line, making unwarranted advances toward another male in the restroom. To then draw a comparison that when a man and a woman engage in this same behavior in a public area, it is acceptable is ridiculous. The before mentioned behavior, although indecent, is consenting, unlike Sen. Craig‘s advances in the restroom. However, they, too, would be prosecuted for indecency. Immorality is immorality. We, as a society, must stop making excuses for depraved behavior.
Christian gatsby, please keep your bronze age morality out of my legal system! I loathe what senator craig stands for but these prosecutions are designed with the sole purpose of targetting gay men and particularly men who have sex with men but do not identify as gay. The whole thing about the toe tapping is to make sure that advances are reciprocated before anyone gets upset. as a women i wish there was a similar system to stop unwanted male attention before it gets to the annoying point. Either way I do not want police entrapping people in this way. On a purely practical point it leads to police corruption as men will pay to avoid the embarrassment and career destroying effects of these arrests. So there is no benefit to society in these sting opperations.
Sen. Craig's choice of a sexual partner is his and his alone. My beef is that he won't own up to his own desires and stop acting so sanctimonious. I've tested his "story" on my last visit to an airport restroom stall and found it impossible to do my "foot moving" to the other stall with my pants around my ankles (due to underwear expansion stoppage). Obviously, he was fully-dressed and sat down facing forward and began the "solicitation" while not in the process of a bm. Please give it up for crying out loud. Come out and be free to have sex with whomever you wish Mr. Craig. Please stop your ridiculous victim story crap and be honest to yourself so you can be honest to others. And lastly and hopefully more gay-haters in Congress can do the same. Gay individuals are just that ... individual human beings as gifts from God, just like everyone else. Stop the bigotry!!!!!!!!
