The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Privacy in Public?

I gotta hand it to the ACLU, they take all comers. Just about. And usually I understand that. By protecting the civil liberties of groups many people despise, they’re protecting all of our civil liberties. By defending Rush Limbaugh, they are also protecting me in some way. By defending Fred Phelps and family, they are in some way protecting me and my family. By defending the fights of convicted sex offenders, they are in some ways defending mine.

But now they’re defending Larry Craig?

The ACLU filed a brief Tuesday supporting Craig. It cited a Minnesota Supreme Court ruling 38 years ago that found that people who have sex in closed stalls in public restrooms “have a reasonable expectation of privacy.”

That means the state cannot prove Craig was inviting the undercover officer to have sex in public, the ACLU wrote.

Even if Craig was inviting the officer to have sex, the ACLU argued, his actions would not be illegal.

“The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom,” the ACLU wrote in its brief.

The ACLU also noted that Craig was originally charged with interference with privacy, which it said was an admission by the state that people in a bathroom stall expect privacy.

Now, I’m no lawyer. And I don’t know all the ins and outs (pun intended) of tearoom sex. But does a stall in a public restroom count as private space? On the one hand, I hope so, because it’s one place I don’t want to be bothered. So, yeah, I’d like to have an expectation of privacy there.

But can people engage in sex in a public restroom and not call attention to themselves? My first thought is yes, they can, provided that everyone else whose passing through that restroom is there for the same purposes. Then, no one is likely to pay any attention or care about what someone is doing in a stall, unless they want in on the action or are invited to take part.

If it’s a restroom where people are actually coming in and out to use to answer those other calls of nature, how can two people engage in sex in a restroom stall and not call attention to themselves? Unless the stall door comes all the way down to the floor, I don’t see how. There is the chance that two people getting in on in a stall can figure out how to do so while making sure only one set of feet are visible under the stall door. There’s also a chance that they’ll handle their business quietly, given the danger of “calling attention to themselves” and thus being discovered.

But what’s the likelihood that people who aren’t visiting a restroom for the purpose of having sex will encounter something they’d rather not run into? Do they have a right not to have to encounter it? Do they have a “reasonable expectation?” Would the officer have had the same “expectation of privacy” if he’d been at the urinal and Craig had allegedly solicited him there?

Does all of this add up to a “right” to have sex in public restrooms? I remember once incident, when I was in college, when I missed an opportunity to consider that question. I and my fellow co-director of the gay student group were surprised to receive a phone call from the head of library security, requesting a meeting with us. At the time, we couldn’t imagine what they’d want to meet with us about.

It turned out that they wanted our advice on how to handle a “problem” with men having sex in some of the more out-of-the-way restrooms. We didn’t have any advice for them, except to either lock the bathrooms, remove the doors from the stall, or have security patrol them more regularly. Several years later I related that story in an online forum for gay men, and boy did I get my ears laid back. Apparently my fellow co-director and I “blew it” by failing to (a) defend the right to have sex in public bathrooms and (b) tell the university that it was none of its business what people did in campus restrooms.

A right to tearoom sex? I end still up with more questions than answers.

Addendum: I forgot one thing. Kip reminded me, Craig pled guilty.

The only additional point that need be made at this juncture is to remind people that Craig pleaded guilty, and the only question now before the courts is whether he is entitled to withdraw that guilty plea. The fact that the underlying law may or may not be constitutional is irrelevant to that question. If Craig had any affirmative defenses (constitutional or otherwise) to make, then the opportunity to make them would have been at trial (or appeal of a conviction). By pleading guilty, Craig waived those arguments, and they are moot now (except as an academic question).

Whatever the nuances of Minnesota law regarding plea withdrawals may be, they surely revolve around a standard due process rule: a plea of guilty, like any waiver of rights, must be knowing and voluntary. That is the only question to be answered at this stage: Was Craig’s guilty plea knowing and voluntary?

See his post for more on this


  1. I think it’s wrongheaded on behalf of the ACLU, but I also think the issue is not a couple having sex in a restroom, but a single person going in and soliciting for sex among the people there. If Larry had a boyfriend and just happened to be getting it on, I would feel very differently. But that’s not what happened. What happened is he went and bothered the general public in the rest room trying to get them to have sex with them while they were in a vulnerable and exposed position.

    I’m trans and long ago in college before I transitioned I had some freak soliciting me under the bathroom divider in a men’s room. It was terrifying, freaky, unwanted and disgusting. It left me feeling degraded and afraid to use a public rest room. (And using a rest room is not optional if one needs to–particularly in a place such as an airport.) It should be a crime. It was an assault. Mr. Craig should be in jail, not in the Senate.

  2. I am not sure this has to be about a right to have sex in a public bathroom stall, but rather whether the government though police officers should be providing surveillance of what is going on inside individual stalls in public bathrooms.

    To me it would be different if someone just happened to witness disruptive behavior as opposed to spending a day in the bathroom just trying to find someone tapping his foot.

  3. I think (correct me if I’m wrong) that a few years back British law decided that bathroom stalls are considered private spaces and therefore “cottaging” could not be called illegal.

  4. I can see two different issues here, both of which I think the ACLU are attempting to defend in their own way by filing this law suit: 1. sexual solicitation in public restrooms and 2. sexual acts in public restrooms. While I’m not one to advocate sex in public places, and I sympathize with Kathygnome’s frustration by being proposition in those public places, however, I can see the the logic in advocating the right in both of these issues.

    For the first issue, sexual solicitation in public restrooms — how is this any different from sexual solicitation anywhere else in public? Is sexual solicitation not free speech and right to association? While I agree with Kathygnome that it is in poor taste and often results in the distress of one party or another — and one can certainly argue that expectation plays a role there — however, one might make the same argument about gay panic — in that the heterosexual person certainly do not expect to be approached and be perceived as a homosexual — and as a result felt wounded and distressed, resulting in perhaps an over-reaction.

    The second issue of sex in public restrooms is likewise arguably a right to be defended. A bathroom stall is a enclose space in public to provide some privacy in performing some acts that one would not like others to see (hence the need to privacy), and also to protect the public from witnessing an act that is generally considered vulgar. While the action is expected to be pooping, can easily be applied to sexual acts — it is generally something that one would not like others to see, and to protect the general public from witnessing an act that is considered vulgar. The point is, if the people performing the sex acts were discrete about it — what is the harm in allowing such activities?

    Seriously, would any of this be of issue if it were not related to heterosexual men’s insecurity and fear for anal intercourse, as well as their insecurities about the possibility of being perceived as a homosexual?