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What Was Larry Craig’s Crime?

The Larry Craig scandal has been, if nothing else, educational. Most of us are learning for the first time that public restrooms are a major hangout for gay men looking for a quickie and that there’s a secret signaling code. That’s a good thing, since it’s apparently illegal to send this code in Minneapolis and elsewhere.

This has, understandably, caused quite a bit of cross discussion. The editors at Slate had a mostly illuminating email exchange about the matter (the notable exception being June Thomas’ baffling assertion that Minneapolis airport cops would be better utilized “finding Osama Bin Laden in Waziristan”). Some of the better comments:

Jacob Weisberg: Shouldn’t we stick up for the poor guy? I can’t believe it’s a crime to tap your foot on the bathroom to signal that you want to hook up, as opposed to actually having sex in the bathroom.

John Dickerson: I agree it seems ridiculous, but isn’t it the public nature of the thing that’s the problem? You don’t want the full blown act, as it were, happening where toddlers are being changed out of their pull-ups?

Jack Shafer: I’m all for sex. Straight. Gay. Solo outings. Orgies. But I can understand why there are laws against “lewd conduct” in public places such as bathrooms and why they’re enforced. I’m not going to stick up for Craig.

David Plotz: Having just read the arrest report, I am unimpressed. Craig didn’t disturb anyone, made very subtle signs and only touched the guy in response to a positive signal from the cop. If they want to stop disturbing and disorderly conduct, they need to find more disorder than this.

Dickerson: Seems to me you should have to go a bit beyond tapping your toes.

Shafer: He pleaded guilty to lewd conduct.

Plotz: Jack, for a libertarian such as yourself to say that a guilty plea is the last word is crazy. You, of all people, know the power of the state to bully and coerce in the enforcement of its laws. This is the case of an excessive law and a frightened arrestee.

Betsy Newmark wonders, as do I, “Why not wait until the supposed guilty party does something more than tap his feet in a suggestive manner so the policeman would have a more substantive case? If they’ve set up a sting because this has been a problem in that bathroom they should have worked to build more of a case than lewd conduct.” Perhaps the answer is in Weisberg’s quip, “Look, there’s a cop sitting on a john in a smelly airport bathroom and he only gets to leave when he arrests somebody.”

Garance Franke-Ruta observes that, “It is not a misdemeanor in Minnesota to ask a person to have sex with you, whether by gesture or voice, and even if the person finds the request unwanted. Think about it: If it were, the women of that state would have a field day with creeps at bars and cat-callers on the street.” She figures “the long and only-recently ended practice of firm legal discrimination against gay people” is the only reason this is a crime rather than a possible civil tort.

Dale Carpenter observes that Craig was not charged with any sex crime but rather disorderly conduct, “a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others.”

People should not have to tolerate actual sexual conduct in public places, but that’s not what happened here. Craig’s conduct was not obscene, abusive, boisterous, or noisy. The officer might have considered Craig’s actions “offensive . . . conduct . . . tending reasonably to arouse alarm, anger, or resentment in others.” But if that’s so, it seems a pretty thin basis for charging him. A reasonable person faced with Craig’s alleged behavior would have moved his foot away and/or muttered a simple “no thanks” or “stop that,” which likely would have brought an end to it. A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn’t happen. In fact, the officer tapped his own foot in response, indicating the interest was mutual.

[…]

What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to “disorderly conduct” in a futile effort to save his reputation and his job. Whatever we think of Craig’s views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it’s difficult to see how he’s a criminal.

Ann Althouse notes that Craig was also charged with “peeping” for staring at the cop through the cracks in the stall for an extended period. Still, “It seems Craig made a series of subtle gestures and the officer let him go on. That would cause a reasonable person to think that he wasn’t upsetting anyone but that his advances were wanted.”

I’m sympathetic to the fact that gay men, especially those who wish to remain anonymous, face greater obstacles in their pursuits than heterosexuals. Given that, I can at least intellectually grasp why the anonymity of a bathroom stall would be advantageous for blind propositioning.

That said, when I’m in a public restroom trying to do that thing which if I were a bear I would do in the woods, I don’t want some creepy guy peering at me through the cracks in the stalls and or sidling up next to me and playing footsie with me. Indeed, at that particular moment, I wouldn’t want sexual advances from Angelina Jolie, either (even if we were both single). Time, place, manner and all that.

I suppose one could argue that creepy solicitations are one of those upsetting things with which people merely have to contend as part of everyday life. The problem, though, is that there is a certain tragedy of the commons aspect to this. If airport restrooms, rest stops, and other public places are allowed to become free fire zones for perverts, it diminishes the ability of everyone else (including, presumably, the vast majority of gays) to use the facilities in peace.

UPDATE: Bill Dyer has a thorough explanation from a legal standpoint that strikes me as quite reasonable. The short version: Craig was charged with peeping and disorderly conduct but allowed to plea out to the latter because there is “far less social stigma attached to a conviction.”

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Most of us are learning for the first time that public restrooms are a major hangout for gay men looking for a quickie and that there’s a secret signaling code.

    While the secret signalling code was news to me, the public restrooms for a quickie, I’ve heard going back to the early 90’s. My employer back then, a major hospital, had security run people out of the public restrooms on at least two occasions, and I had my own experience with a peeper looking at me as I tried using a urinal at a mall restroom. That was 1991 or 1992.

    Agreed, I don’t want anyone(male or female) peering at me in a public restroom either. It is creepy.

    Like or Dislike: Thumb up 0 Thumb down 0

  2. […] Solicitation is Illegal – Not ToetappingPosted by: MichaelJames Joyner: The Larry Craig scandal has been, if nothing else, educational. Most of us are learning for the […]

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  3. Lev Raphael says:

    Public restrooms a “major hangout” for gay men? What homophobic bull!

    Gay men meet on the Internet, in bars, social groups, sports leagues, choruses, ocean cruises, Provincetown, Key West, The Castro. . . .

    Men seeking sex in public toilets are predominantly married and closeted.

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  4. Michael says:

    Garance Franke-Ruta observes that, “It is not a misdemeanor in Minnesota to ask a person to have sex with you, whether by gesture or voice, and even if the person finds the request unwanted.”

    Is Garance sure about that? Or might these also fall under the “lewd conduct” banner, only they are generally dismissed by the victims because it has become expected (even wanted) in venues such as bars and clubs? For example, could someone stand outside of a McDonalds and ask every 3rd person who walks in if they want to have sex? I’m pretty sure they would get arrested to.

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  5. Anon says:

    It seems to me that the problem here is that propositioning someone for sex is not in itself illegal (nor should it be), but having sex in a public restroom is illegal (and it should be).

    Wouldn’t it be okay to require that the propositioner make some definite move towards going ahead with the act in the restroom, before he can be convicted? How do we know that Craig was not going to suggest that they go to an airport hotel?

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  6. James Joyner says:

    Public restrooms a “major hangout” for gay men? What homophobic bull!

    What I actually wrote was “a major hangout for gay men looking for a quickie.” Presumably gays looking for more meaningful relationships pursue more mainstream strategies. For that matter, those living in major metropolitan areas have more straightforward alternatives as well.

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  7. Michael says:

    It seems to me that the problem here is that propositioning someone for sex is not in itself illegal

    Again, are you sure about that? A lot would depend on the situation and the manner of the propositioning.

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  8. […] to Right Pundits, Outside the Beltway, Perri Nelson’s Website, The Virtuous Republic, Rosemary’s Thoughts, The Random Yak, […]

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  9. Diane C. Russell says:

    Seems to me that Craig’s real crime (if it is one)–and the reason he should resign–is gross stupidity.

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  10. […] to Outside the Beltway, Perri Nelson’s Website, The Virtuous Republic, Rosemary’s Thoughts, Adam’s Blog, […]

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  11. What I actually wrote was “a major hangout for gay men looking for a quickie.” Presumably gays looking for more meaningful relationships pursue more mainstream strategies. For that matter, those living in major metropolitan areas have more straightforward alternatives as well.

    Be careful James, someone may think you’re trying to be punny.

    Sarcastic comments aside,You’re right. Those men looking for a pickup in the men’s room aren’t looking for a meaningful relationship or as the other commenter said, are most likely closeted gay men who don’t know where else to turn.

    Well publicized cases like this, which even with my experiences at work long ago, are an annomaly. They do however make many parents wary of letting small boys go into the restroom unaccompanied. This often results in the young man going to the ladies room with their mom. My Wife does this with our 4-year-old god son whenever she takes him out.

    The fear is probably out of proportion to what the risk is, but most parents tend to err on the side of being over protective.

    Bill

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  12. Boyd says:

    This is an area where you and I will have to part company, Dr J:

    I wouldn’t want sexual advances from Angelina Jolie, either

    I’m not sure there’s a time, place or manner that I wouldn’t welcome such an advance. Just sayin’.

    Now that I think about it, I’d prefer that Brad weren’t watching or anything, but you get my point.

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  13. Non-Sense of the Senate Resolution…

    From the Left &l ……

    Like or Dislike: Thumb up 0 Thumb down 0

  14. John Edwards and MY SUV…

    ……

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  15. Let New Orleans sink into the Ocean…

    For God’s sake, stop contributing Katrina relief money. This only encourages these people to move back into the same sinkhole nature graciously removed them from….

    Like or Dislike: Thumb up 0 Thumb down 0

  16. BeldarBlog says:

    The answer to the “Why was this a crime?” crowd on the Craig matter…

    Ed Morrissey, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed a crime. As Balko writes, Craig didn’t actually engage in the lewd behavior. Didn’t get that far. A…

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  17. […] Matthews MoreWhat.com Trackposted to Right Pundits, Outside the Beltway, Perri Nelson’s Website, Committees of Correspondence, DeMediacratic Nation, Right Truth, Big […]

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  18. Triumph says:

    That’s a good thing, since it’s apparently illegal to send this code in Minneapolis and elsewhere.

    Let us remember that he was charged with disorderly conduct.

    This refers to any activity that is “offensive, obscene, abusive, boisterous, or noisy.” Additionally, the accused must have 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.”

    The officer–based on being in a site where this type of activity happens with regularity–assumes that this type of solicitation “will tend to alarm, anger, or disturb others…or breach the peace.”

    The fact that Craig plead guilty suggests that he was acting disorderly; I would think that you could easily challenge this if you were innocent. But remember Larry is a Big Government conservative, given his steadfast support of the expanison government surveillance and detention powers.

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  19. Moron Leona Helmsley leaves dog 12 million bucks…

    With all the suffering and misery in the world, this is how she wanted to be remembered, giving millions to a dog who would be just as happy with a $12 doggy bone….

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  20. the substance of things…

    So I got bored on the way home from my car’s maintenance appointment today, and as any of you probably know, bored Linoges are bad things. The thought occurred to me, thanks to a webpage that will remain nameless and……

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  21. davod says:

    So, for pleading guilty to disorderly conduct the Republicans are throwing him out?

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  22. More Democratic campaign donation $candal$…

    So why so much focus just on Democratic scandals?  Because they annoy me pointing the finger at the corruption in the Republican party when their house is just as dirty.

    They claim to be the party of the working class and accuse the Repu…

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  23. Run Away and Change Your Name…

    That’s how many people evade the laws of this nation after first illegally crossing our borders. But thankfully it didn’t work this time:
    INDEPENDENCE TWP. — As second shift Flint police officers donned “mourning bands” T…

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  24. […] tactful hello to readers from Outside The Beltway, The Virtuous Republic, Perri Nelson’s Website, Rosemary’s Thoughts, Right Truth, Big […]

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  25. Shadowscope says:

    “Wanted” Donor Has Democrats On The Run…

    This is like a flashback to the nineties when Clinton and Gore were in office and there were investigations going on as to where their donations were coming from. Not the Republicans are any different. They are all scurvy dogs……

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  26. Right Truth says:

    WMD Phosgene from Iraq Found at United Nations…

    U.N. weapons inspectors who had been in Iraq discovered potentially dangerous chemical substances in their office near U.N. headquarters. One item may contain “phosgene, an old generation chemical warfare agent.” Fox headline: Vials of Dangerous Chem…

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  27. Wayne says:

    Triumph
    “The fact that Craig plead guilty suggests that he was acting disorderly; I would think that you could easily challenge this if you were innocent.”

    That is a big assumption. Especially since the Police are usually very adept at writing reports to support their accusation. Also Craig would have to go through a public trial, which would have most likely put him on front pages. People would assume he was guilty regardless of outcome and his image would have taken a hit.

    Yes his image has taken a hit now. He had the choice then to gamble that the incident might not see the light of day by keeping it out of the courts if he pleaded guilty to a lesser charge or made sure it saw the light of day and be tarnish regardless. He gamble and he lost.

    There was also the chance that he could get a Libby type jury that was looking to stick it to a Republican regardless of the facts.

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  28. Finger pointing and excuses begin in the VA tech probe…

    Let the excuses begin.  The School and the Government are going to vigorously defend themselves and blame the other.  I am going to deconstruct this dreck in detail.  At the bottom, I will note the real solution which the panel…

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