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Calif. Appeals Court Tosses Mens' Room Arrest Conviction

Could this help Larry Craig? A three judge panel in California reversed a conviction yesterday for soliciting sex in a men's bathroom:

[T]he ruling, which threw out the conviction of Stephen Lake, 51, did not address whether the bathroom stings were discriminatory because they targeted only homosexual activity. Instead, judges Donald Black, Kent Levis and Debra Kazanjian ruled that prosecutors did not establish that someone was likely to be present who would have been offended by Lake's conduct, an element needed to prove a crime took place.

Criag was charged with this section (pdf) of the disorderly conduct statute:

(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.

The factual basis for his guilty plea (pdf) was that he engaged in conduct he knew or should have known "tended to arouse alarm or resentment of others."

Could the prosecution have established, as they failed to do in California, that someone was likely to be present who would be alarmed or feel resentment by Craig's toe-tapping and hand movements?

Another question: Will Craig raise the issue that the sting is unconstitutional because it only targets homosexual behavior?

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    Since it's a MEN'S Room (5.00 / 1) (#3)
    by Maryb2004 on Fri Sep 07, 2007 at 12:20:19 PM EST
    it seems logical that the behavior being targeted would be predominantly (only?) actions by men directed to men.  

    That 1970 study in the newspaper article I linked to the other day said that overwhelmingly the men that engage the tearoom trade claim not to be gay.  So an argument can be made that it is the behavior that is targeted  - not whether the person is gay or not.

    Out of the mouths of noted homophobes (5.00 / 1) (#7)
    by Ellie on Fri Sep 07, 2007 at 02:05:56 PM EST
    From a noted homophobe:

    "The public has a right not to be exposed to sex in a public place," said Susan Sommer, senior counsel for the gay litigation group Lambda Legal Defense & Education Fund. (CRAIG MOST LIKELY TO LEAVE by Strickland & Murray, NBC, 09/06/2007)

    What a horrid person! [/eyeroll]

    Leaving off the peeping and stall groping part of Craig's trolling doesn't mean that activity itself vanished from the sequence, only that dropping it to spare him public embarrassment from having it on the record. If he pursues this, I'm sure his activities will get a more detailed examination.

    I'd include having public spaces, like parks and restrooms, turned into cruise locales against the consent of the communities that provide for their upkeep in the realm of non-consensual sex or harassment.

    There's a Family Circle-type map here, (From the Likely Story Department: Craig Probably Passed Toilet En Route to Flight Gate, by Nathaniel Hoffman, 9-06-07, New West)

    I seriously hope Craig presses on with this. People who actually do fight to keep rights and resources neutral and accessible to all rather than reliant on cronyism or social whims should also have their day in court, so to speak.

    His sexual proclivities should have nothing to do with the expectation of fairness here.

    Your Link (none / 0) (#9)
    by squeaky on Fri Sep 07, 2007 at 02:26:59 PM EST
    (CRAIG MOST LIKELY TO LEAVE by Strickland & Murray, NBC, 09/06/2007)

    Does not include any quotes from Susan Sommer. Does she also advocate against hand signals and toe tapping? Where is the beef? or is this just about supporting preemptive strikes against potential gay sex mens room.

    BTW- I am not sure of the context of Sommer's quote, but if it is a position on the Craig affair, does anyone expect a representative of a gay advocacy group to stick up for an anti-gay legislator's closeted behavior?

    I wouldn't.

    Parent

    Craig / LAMBDA link is here in The Blade (5.00 / 1) (#13)
    by Ellie on Fri Sep 07, 2007 at 02:53:21 PM EST
    More:

    Republican leaders, fearing election-related consequences over an escalating scandal, were further startled when Craig's office announced his lawyers are asking a Minnesota court to allow him to withdraw his guilty plea stemming from an alleged sexual solicitation in June inside a bathroom stall at the Minneapolis-St. Paul International Airport.

    Gay rights attorneys, meanwhile, have said the flood of news media coverage of Craig's bathroom arrest could draw attention to their longstanding concern about what they consider improper police tactics, including questionable entrapment arrests, associated with crackdowns against sexual solicitation in public places.

    "The public has a right not to be exposed to sex in a public place," said Susan Sommer, senior counsel for the gay litigation group Lambda Legal Defense & Education Fund.

    "Yet there are situations where police use entrapment or make arrests where there is no public sex but someone proposes sex at another, private location," Sommer said. "They shouldn't be in a rush to arrest someone who is just discussing plans for sex with a seemingly willing partner."

    Craig has denied he's gay and has insisted an undercover police sergeant who arrested him in the airport bathroom on June 11 misinterpreted his hand and foot movements at the time the officer encountered Craig in an adjacent bathroom stall.

    The officer allowed Craig to plead guilty to a misdemeanor charge of disorderly conduct after initially accusing him of a more serious "gross" misdemeanor charge of "interference with privacy."

    The latter charge is based on a Minnesota law that says a person is guilty of a gross misdemeanor if he or she "surreptitiously gazes, stares or peeps in a window ... or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts ... or clothing covering the immediate area of the intimate parts."

    Chuck Samuelson, an official with the American Civil Liberties Union of Minnesota, said police undercover officers frequently use the law to arrest unsuspecting men who seek to meet other men for sex in public places such as bathrooms.

    Samuelson said ACLU attorneys don't believe such arrests are justified in cases like Craig's, where the men involved merely use hand or foot signals and don't engage in sexual acts or lewd conduct.

    The sergeant who arrested Craig stated in his arrest report that Craig allegedly peeped into the stall where the officer was sitting, entered an adjacent stall and slid his foot into the officer's stall. The officer stated in his report that Craig did this after Craig tapped his foot a few times on the floor and the officer responded by tapping his own foot.

    The officer said Craig then slid his hand along the bottom edge of the wall separating the two stalls -- all part of a system of clandestine signals among men seeking out other men for "lewd" acts, the officer stated in the police report. [...] (Craig reconsiders plan to resign, Gay Attorneys say Idaho senator committed no crime by Lou Chibbaro Jr, Washington Blade, 09/07/2007)

    I just don't think that expecting respect for a public space should hinge on whether the would be abuser of the resource is seaking same or opposite sex hookups, or whether they're engaging in some other activitie that impedes the rightful and comfortable access of others to the same space.

    I don't believe that Craig, by his alleged behavior and history, was accidentally trolling and had it misinterpreted. (Yes, I'm just that hard hearted.)

    I'm all for examining this publicly in the sunshine.

    Parent

    Thanks Ellie (none / 0) (#16)
    by squeaky on Fri Sep 07, 2007 at 03:12:13 PM EST
    And not only would I have been surprised if Lambda had one good thing to say about Craig, but I also would have been surprised if they were supportive of these sort of police tactics meant to intimidate gays.

    Notwithstanding the Leering Law the cop had no expectation of privacy and more than likely encouraged Craig's behavior. A normal person that did have an expectation of privacy would say get out of my face you pervert, or something along those lines.

    No public sex was involved. And as far as I know the various complaints have not been made public.

    Parent

    I guess my question is: (none / 0) (#11)
    by Pancho on Fri Sep 07, 2007 at 02:38:48 PM EST
    Is this a gay advocacy issue? Do the vast majority of gays who do not engage in this behavior want to be associated with anonymous restroom sex?

    Parent
    Well (none / 0) (#12)
    by squeaky on Fri Sep 07, 2007 at 02:45:01 PM EST
    I did not know that this case involved sex. I thought it was about anonymous hand signals and toe tapping.

    Parent
    If you are living (none / 0) (#15)
    by Pancho on Fri Sep 07, 2007 at 03:10:27 PM EST
    in a fantasy land where OJ didn't legally kill anyone, then sure, it does not involve sex, but in reality you know damn well that it was about sex. My point is that if I were gay, I sure as hell would not be defending this behavior.

    Parent
    the better analogy (5.00 / 1) (#20)
    by Deconstructionist on Fri Sep 07, 2007 at 04:03:06 PM EST
    would be if there had been no killings and the  cops had apprehended OJ with a knife and a pair of gloves lurking in the shadows and had charged him with attempted murder and had no other evidence he intended to kill.

    Parent
    About Sex Is Not Sex (none / 0) (#18)
    by squeaky on Fri Sep 07, 2007 at 03:48:13 PM EST
    And not illegal. As far as I know picking up someone for consensual sex perfectly legal. Sex in a public place is illegal, that did not happen.

    Your analogy is absurd.

    Parent

    It is not absurd at all; (none / 0) (#21)
    by Pancho on Fri Sep 07, 2007 at 04:28:04 PM EST
    he was absolutely trolling for sex. I don't give a damn personally if he is convicted or not, because he has already been punished, but to deny that hand signals and toe tappping are not "about sex" is ridiculous.

    Just as you know that OJ killed two people, you know that he was trolling for sex. The fact that the courts may "exonerate" Craig, as they did OJ, does not change the circumstances of what they did. My analogy is quite valid.


    Parent

    Trolling For Consentual Sex (none / 0) (#22)
    by squeaky on Fri Sep 07, 2007 at 04:33:46 PM EST
    is not illegal. Sex in public places is illegal. That did not happen.
    If trolling for sex were illegal how come that is not what he is charged with.

    Parent
    I don't care if (none / 0) (#23)
    by Pancho on Fri Sep 07, 2007 at 05:05:14 PM EST
    it is legal or not, and I don't care if they let him off. I just think that it is a mistake to make this a gay rights issue.

    For what it is worth, I have seen the hand wag under the stall and it is extremely creepy.

    Parent

    Wasn't it "lewd conduct"? (none / 0) (#24)
    by ding7777 on Sat Sep 08, 2007 at 06:21:36 AM EST
    A 2 minute "peek" is 1 minute 59 seconds too long to determine if the stall was occupied.

    Parent
    Way Too Long (none / 0) (#25)
    by squeaky on Sat Sep 08, 2007 at 12:01:04 PM EST
    But what was the cop doing during that time. We have not heard from him about that yet, nor do I think we will.

    He certainly was not telling Craig to f' off. More like he was batting his eyes, licking his lips and one can only imagine what he was doing with his hands.

    Parent

    Denial Trumps Logic (none / 0) (#1)
    by squeaky on Fri Sep 07, 2007 at 12:06:41 PM EST
    Another question: Will Craig raise the issue that the sting is unconstitutional because it only targets homosexual behavior?

    Funny, that would be a first for Craig.  If anything, judging by his voting record, he believes that the constitution does not protect gays and should be rewritten to specifically marginalize them.

    That'd be a tough sell (none / 0) (#2)
    by Deconstructionist on Fri Sep 07, 2007 at 12:15:42 PM EST
     it's pretty easy to say we would also target any women who came in the mens' room soliciting sex.

    Funny (none / 0) (#4)
    by squeaky on Fri Sep 07, 2007 at 12:20:59 PM EST
    A woman was arrested in San Diego (none / 0) (#5)
    by oculus on Fri Sep 07, 2007 at 12:57:25 PM EST
    for going into the men's room at the football stadium for to use the restroom "for its intended purpose." Long line for women's room, of course.

    Parent
    They arrest people for that too?.... (none / 0) (#8)
    by kdog on Fri Sep 07, 2007 at 02:08:59 PM EST
    It never ceases to amaze what is an arrestable offense these days.

    Tapping your foot, using the loo....whats next, breathing?

    Parent

    Depends (5.00 / 1) (#10)
    by Ellie on Fri Sep 07, 2007 at 02:30:33 PM EST
    Do you choose to pee or is it, like breathing, something it's reasonable to expect you have to do? If the stadium didn't provide sufficient facilities for the physical activity, then heading for the nearest can shouldn't be cause for arrest.

    Do you have to troll public bathrooms and parks for anonymous sex outside your own community, and force other non-consenting parties, like those who provide for the space's upkeep, to deal with the consequences? If so, then by all means turn up for the court date with a note from your Sexy Doctor.

    Let's drop the pretense that Craig -- a seasoned lawmaker and longtime toilet cruiser and sexual predator -- wasn't arrested out of the blue just for ambient "foot tapping", then his naive, born yesterday soul kept in the dark about his legal rights.

    His behavior behind his solicitation will and should be dealt with judicially. He's gambling on getting a positive outcome from playing he said/he said (his prerogative).

    I hope the Senator rides with that!

    Parent

    By all my means of measure..... (none / 0) (#14)
    by kdog on Fri Sep 07, 2007 at 02:55:42 PM EST
    Craig is a piker...but he didn't deserve to be arrested...sorry.

    I'm anti-chains unless its a last resort....I don't wanna live in a handcuff-crazy nation where every little infraction leads to chaining, caging, and fingerprinting.  Our society seems to get collective jollys out of seeing people in chains....I want no part of it.  Talk about perverse...

    However you slice it....Craig could be dealt with without chains, as could the poor lady who used the mens room, the dealers at the poker club, the stoner smoking a spliff in the park, etc, etc, etc.  Save the chains for the violent criminal who leaves us no choice.

    Parent

    Why I strongly support neutral rights and recourse (5.00 / 1) (#19)
    by Ellie on Fri Sep 07, 2007 at 03:59:24 PM EST
    It's the only attitude that will keep public spaces neutral, accessible and open to all as opposed to basing availability on changing whims and fashion and telling people to find a workaround.

    Who knows what other needs and circumstances will arise in changing times.

    But it's not my attitudes that are complicating the issue. Untrammeled abuse of public spaces that creates a blighted spaces that the community can no longer use -- eg, public parks after dark -- is what creates authoritarianism, not the suggestion of mutual respect.

    I find it ironic to be typing this under the TL "Trolling is not tolerated here" warning.

    Craig's trolling -- even his supposedly innocent toe-tapping, hand-groping, stall peeping -- wouldn't be tolerated outside hardcore establishments. I expect most gay-owned neighborhood bistros would object to transient toilet cruisers subjecting customers using the facilities to the peep'n'grope cruising. (eg, someone in a locked stall for more than three minutes, it means you consented to whatever stall invasion you get!)

    I'm down with "ownership" of his right to fair and equal justice even though he's benefiting from the very system he's trying to skew to privilege.

    But the knee jerk rush to excuse him because he's a closeted gay jerk, well, I guffaw in that general direction.

    Parent

    Should (none / 0) (#6)
    by Pancho on Fri Sep 07, 2007 at 01:59:24 PM EST
    insider trading convictions be tossed out, because they unfairly target white men?

    Pick your battles a little better (none / 0) (#17)
    by Pancho on Fri Sep 07, 2007 at 03:16:43 PM EST
    Gay rights attorneys, meanwhile, have said the flood of news media coverage of Craig's bathroom arrest could draw attention to their longstanding concern about what they consider improper police tactics, including questionable entrapment arrests, associated with crackdowns against sexual solicitation in public places.