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