A MINNESOTA court will probably reject the attempt of Sen. Larry E. Craig (R-Idaho) to withdraw the guilty plea stemming from his arrest in a Minneapolis airport men's room, and rightly so. That doesn't mean that the sting operation that led to Mr. Craig's predicament was legitimate.
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Time for a disclaimer - I know Senator Craig and several of his staffers. I worked with him in helping to create the Center for Study of Aging at BSU. So what I am about to say might sound like a defense of him, but in keeping with the theme of this blog, my comments are intended to question the policy of policing sex in public bathrooms.
Society invests a great deal of its resources trying to repress an innate human drive. While quick impersonal sex has been occurring for ages, we were provided an insider's view with Humpreys' 1970 study Tea Room Trade. This study brings us to the crux of the legal issue - while Mr. Craig's actions appear to be consistent with people searching for a quick sexual encounter, did he meet the legal criteria for disorderly conduct? You be the judge (Minn. Criminal Code):
609.72 DISORDERLY CONDUCT. Subdivision 1. Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:(1) Engages in brawling or fighting; or(2) Disturbs an assembly or meeting, not unlawful in its character; or (3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
Is it possible that gestures constitute language under the statute? Is is possible that "body language" could be misinterpreted? I searched the criminal code but could find no references to "lewd" conduct that might cover the situation described in Mr. Craig's arrest.
Now back to the issue of public policy. Where is the balance between individual liberties and the need to preserve public order that this case represents? Is having police officers on duty in public bathrooms the best use of an expensive resource? On the other hand, does the government have a compelling interest in suppressing a behavior that many find offensive, especially in the presence of minors? Does the risk of discovery add to the attraction of engaging in sex (heterosexual and homosexual) in public places? Were the police also monitoring the women's public restrooms? Has an evaluation been conducted as to the effectiveness of policing public restrooms in suppressing sex acts? Have alternatives to police patrol been explored and evaluated?
Until these and other questions are addressed, the police will continue to selectively enforce those offenses that they choose instead of searching for more effective ways to deploy existing resources. We don't hold the police accountable for effectiveness. Instead we continue to let them produce annual reports that show trends in arrest rates and infer from this annual activity that they are being effective. As the title of a book posits, "whose law and what order?"