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.”
