Clearly, there has been an inordinate historical focus upon the pursuit and punishment of those engaged in same sex encounters’¦likely a derivative of established social norms and values. Over time, it also appears that there has been a growing awareness that programs to limit public sexual activity need to evolve and to begin incorporating methods that seek to extinguish the behavior as opposed to criminalizing it.
Commentary By: Daniel DiRito
As the blogosphere has sought to digest the meaning of the Larry Craig incident, it has begun to spur a worthwhile debate‘¦one which has been ignored and has lurked in the background in ways eerily similar to the behavior that led to the arrest of the Senator.
Generally speaking, the public is opposed to encountering unexpected or offensive behaviors in public environments’¦and that is a reasonable concern for those within government to address. Clearly, the opinions regarding which behaviors constitute a nuisance or create the conditions under which to charge an individual with a crime will vary from individual to individual’¦often dependent upon one’s values, one’s religious beliefs, ands one’s propensity for tolerance. The fact that there are discordant beliefs simply complicates the task for those charged with monitoring such activities.
By and large, citizens believe that law enforcement departments are committed to treating each individual fairly and with the same level of respect for their civil liberties. At the same time, history tells us that this isn’t always the case. Regardless, most citizens afford our law enforcement departments the benefit of the doubt’¦which is as it should be’¦but only to a point.
In writing about the Larry Craig situation, I broached the question of whether the targeting of men who have sex with men (I avoid using the term gay because studies indicate that many of the men who participate in these clandestine encounters are married and consider themselves to be heterosexual) receives a level of attention that is commensurate with that given to those who engage in opposite sex liaisons in public locations.
I have asked readers and colleagues to ponder the question and to cite any examples whereby tactics similar to those employed in the Senator’s case are being utilized to charge those engaged in opposite sex public encounters. At the moment, I have not been provided with any such examples’¦though a few individuals have cited prostitution stings as examples. I have discounted such examples because they constitute a specific crime that is not at play in circumstances like that of Senator Craig’¦meaning that the individuals charged in men’s restrooms are engaging in consensual sex without the exchange of money (by definition the exchange of money is an act of solicitation), which generally leads to charges of lewd behavior, indecent exposure, or disorderly conduct.
I don’t want to devolve into a legalistic discussion though some basic understandings are required for this debate. Firstly, laws can and do vary from jurisdiction to jurisdiction so one size doesn’t fit all. Secondly, courts have offered a number of rulings on the subject though no definitive across the board position can actually be derived.
Relevant to this topic, the Senator’s actions constituted disorderly conduct’¦despite what he may have intended to do. In essence, intention doesn’t necessarily equate with the ability to convict on the lewd behavior charge. The fact that he plead to the lesser charge (disorderly conduct) is evidence of this reality. Further, in some of these cases, the accused have successfully argued that their actions in a closed door stall in a restroom facility cannot equate with disorderly conduct because their actions didn’t actually take place in public. The argument is open to interpretation and it can progress into questions of a fundamental granting of constitutional privacy privileges.
With that said, one can see that the issue is more complex than one might expect. Notwithstanding, it is important to note that the issue isn’t solely one of legality as it is reasonable to consider other factors’¦such as what the public can legitimately expect upon entering a public restroom. While I am personally opposed to using these restrooms for sexual liaisons, the issue requires a much more comprehensive analysis.
To introduce the other considerations, let me begin with a simple example that will hopefully illuminate my concerns. Suppose one conducted a survey whereby the objective was to gauge the public’s reaction and response to witnessing an apparent sexual encounter in a public restroom. In the study, the respondents witness 50% of the situations involving same sex participants and the other 50% involving opposite sex participants. In both cases, the sex of the participants is obvious, as is the sexual nature of the activity.
The respondents are then confronted as they exit the restroom in order to gauge their reaction as well as what they believe to be the appropriate response from law enforcement. Each respondent is asked to explain what they believe they witnessed to insure that they properly identified the sex of the participants. Once that is determined, they are asked to respond to a multiple choice question outlining the action they believe should be taken.
The first answer is, ‘While I don’t think they should be doing this in a public restroom, I’m not in favor of it being a crime.’ The second answer is, ‘I think that they should be charged with a crime in the event that a law enforcement officer were to be summoned’. The final answer is, ‘I think that law enforcement needs to establish a sting operation to target those who might intend to engage in such activity in order to catch and charge them’.
My own belief is that the responses would be skewed towards answer number one with regards to opposite sex participants and towards answer number three with regards to same sex participants. I say as much because it would likely reflect the beliefs held by most Americans’¦meaning that heterosexual sex is viewed to be more acceptable than homosexual sex. In fact, I would contend that many of the respondents would laugh off the heterosexual activity while many of those witnessing homosexual activity would be outraged.
Therefore, one must ask whether the existing law enforcement actions being conducted in situations similar to that in Minneapolis’¦which led to the arrest of the Senator’¦reflect a societal bias with regards to homosexuals. In the absence of similar operations aimed at heterosexual activity, it seems safe to conclude that the treatment is not equal’¦and is likely reflective of prejudice.
Let me offer an even simpler example to reinforce my argument. All things being equal, a kiss between same sex couples in public will elicit a negative reaction (a moral judgment)’¦while a heterosexual kiss may elicit no reaction or at worst a negative reaction that such behavior doesn’t belong in public’¦but rarely a negative moral judgment.
If that same bias is being applied to the actions of law enforcement (and it seems difficult to assume otherwise), we have a problem with selective and unfair discrimination.
Let me share part of a discussion I’ve been involved with on this very topic. The information is from an individual who works with this issue and the men who are being charged with these types of offenses. I am not including his name or the organization as a matter of privacy. While I don’t agree with every point made, I think it provides some important insight into a perspective that is often omitted from discussions of this issue.
Ok. The agency I work for has worked on hundreds of these cases. We have won lawsuits on the matter so I am going to respond to this last post with a few items.
1. Undercover operations have 0 deterrent effect. There is no evidence that sting operations against gay men have a deterrent effect. In fact the opposite is true. When members of the public see uniformed police ‘ THAT is a deterrent. It makes many people feel more safe and if you combine it with signs saying that illegal behavior will be prosecuted or that surveillance is occurring (it doesn’t have to be occurring) then you could argue there is a deterrent goal by the facility. But hiding a police officer does not prevent crime all it does is A. catch criminals or B. invites entrapment by overzealous cops who are frustrated with cautious perpetrators that refuse to take the bait. This is the reality.
2. Charging people is the goal. Police are very politically motivated. Their jobs and their bosses jobs are very much designed around getting rid of undesirables including queers. These operations usually carry a higher charge like in the Craig case where he claimed he had to negotiate it down to a misdemeanor. Charging felonies is about getting queers on the sex offender registry, shaming them in public, or costing them so much money they won’t dare fight the charge in court. We had a case of 770 arrests in 4 months. Almost all were innocent. 50 of the guys got in touch with (agency name omitted) and all were acquitted because the officer refused to show up for court, meaning that he would commit perjury about what he put in the police reports. There is a fine for the charge, a fine for the court fees, attorney fees and sometimes there is a ‘nuisance abatement’ charge so they can take your car which costs hundred to get it back. This is thousands more if you go to court. I repeat. These charges do not deter men or else every cruisy area where there were arrests would see reductions. This is not the case.
3. Police mostly are not responding to public complaints. Police know about cruisy restrooms because of websites and a few public complaints. We have filed Freedom of Information Act (FOIA) after FOIA after FOIA and never once have we received a public complaint of public sex. If this is such a big problem, which justifies an undercover operation, there should be some documentation. Nada. In (state omitted), the State Police even called their operations ‘Bag a Fag’ operations and printed T-Shirts saying so. This is the sign of bias not serving and protecting. If there are really people observing public sex (which is rare because most of this activity is committed by guys that do not want to be seen or caught) then a uniformed cop walking in should be able to see the same thing right. Right. But they don’t want to deter it or stumble across it, they want to invite it. They want it to happen. 9 times out of ten these men never get a warning and sent away. They invest so much money and time that they love charging on the first offense, charging high and publicizing the hell out of it.
4. I have trained over 1000 police, some as a condition of our lawsuit and nearly all of them believe that gay sex is so sick they would do anything to root it out. I have had cops say out loud in a training that they would watch two women go at it, send a str8 couple home and bust a gay couple. I have also had cops admit in these trainings that these operations are scams designed to make money and shame people. Some chiefs and some prosecutors won’t honor them at all. In (state omitted) we have shut down many of these when high level chiefs have admitted that uniformed cops are an effective way of dealing with the ‘problem.’
I think this is invaluable information’¦information that gives the reader a first hand view of the realities confronted by those who have engaged in such activity and the obstacles they face’¦but it also provides insight into which methods may be effective in limiting or deterring these activities as well as exposing the possibility that the motivations of those who establish programs like the one found in Minneapolis may be biased and misguided.
It’s difficult to argue in favor of a program that isn’t effective’¦unless, of course, one is particularly prejudiced against those who are participating in the behavior. If the goal is to extinguish this activity, it appears that these sting operations are less than effective.
Rather than rely upon one source, I consulted a document prepared by the U.S. Department of Justice titled, ‘Illicit Sexual Activity in Public Places’. The following excerpts are from this lengthy document and they reiterate and reinforce some of the concerns shared in the prior quotation.
There are widely different perspectives on public sexual activity. Some do not believe the behavior constitutes a public safety threat; some view the behavior as a ‘victimless crime’ involving two consenting partners; and some see the behavior as a threat to the community’s ‘moral decency.’ ‘Impersonal,’ ‘casual,’ and ‘anonymous’ sexual behaviors have negative connotations to many people, as they stand in contrast to ideals of romantic love, monogamous relationships, and long-term commitments. Moral overtones pervade discussions of nudity and sexuality, particularly when they address same sex interactions. These judgments often underlie the public’s concern. Community morals and beliefs about how the law should regulate morality will affect how each community addresses the problem. This guide does not adopt any particular moral perspective; it is intended to inform you about the effectiveness and consequences of various approaches to controlling public sexual activity.
Primarily, such activity constitutes nuisance behavior and does not pose a serious threat to community safety.
The responses to public sexual activity can be fraught with difficulty. Charges of harassment, entrapment, bias and discrimination against homosexuals have historically surrounded efforts to address public sexual activity between men. Therefore, it is vital that you objectively analyze the problem so that you develop fair and effective responses.
Certain patterns (e.g., opposite-sex coupling at a ‘lovers’ lane’) have not been studied empirically, while others (e.g., same-sex contact in public restrooms) have been studied much more extensively. It is important to note that engaging in same-sex activity does not necessarily imply a homosexual identity; in fact, many men who have sex with men in public places are married or otherwise heterosexually involved, and do not consider themselves to be gay.
When apprehended, many offenders may suffer substantial social repercussions, in addition to any criminal justice related consequences that may ensue. Threats to their marriages, friendships, jobs, reputations, and social standing often cause them to try to distract attention from their behaviors by showing exaggerated degrees of respectability, such as strong ties to the religious community or passionate condemnation of homosexuality. The larger the community’s moral objections to public sexual activity mean that participants have much to lose if they are discovered.
Two things are immediately apparent. One, The Justice Department realizes that efforts to limit this type of activity have moral considerations’¦and that can lead to prejudicial judgments. Two, the fact that same-sex activity is the only activity that has been extensively studied supports my contention that little effort is expended to suppress similar heterosexual activity. It also suggests that a bias has existed for many years with regard to homosexual activity and it has often been targeted.
A lack of privacy may also be the reason for male sexual activity in public restrooms. In particular, men with heterosexual identities may want to conceal their behavior from significant others. Their heterosexual identities also deter them from using other, less-public venues such as gay bars or sex clubs. Some homosexual men also lack the freedom to pursue same-sex partners privately due to family or peer disapproval. A community’s condemnation of homosexuality may drive the behavior to remote, although public, locations, particularly among those exploring their sexuality and not yet connected to the gay community.
Most researchers and practitioners agree that focusing solely on arresting those engaging in public sexual activity is unlikely to reduce the overall scope of the problem. In your response strategy, you should acknowledge that it will be difficult to affect people’s motivations for engaging in the activity. A balanced approach combining enforcement strategies and those targeting environments that support the behavior is most likely to decrease the prevalence of the activity and the public’s concern about it.
Used alone, enforcement efforts are likely to lead to displacement. Although not the most desirable outcome, there is evidence that when displacement does occur, the magnitude of the problem decreases with the move to a new location.
In addition, an exclusive focus on environments in which same-sex interactions occur can result in charges of bias and discrimination. Therefore, you must address the full range of public sexual activity and target particular locations based on objective, justifiable assessments of threats to public safety.
Again, the report confirms many of the same conclusions offered by the party quoted above and with whom I discussed the issue. I view the warnings in the last paragraph to be a tacit acknowledgment that there has been a focus upon same sex encounters. Note the use of the word objective’¦a