Senator Craig Rebuffed
I do not, as a general rule, use this blog to discuss any personal matters, or to hold forth on politics or society in general. I’m breaking that rule for a moment.
Senator Larry Craig infamously should learn to keep to himself in any public restroom. His attempt to have his (insanely misguided) plea of guilty to misdemeanor disorderly conduct has been rejected. But this is not really about the republican senator, nor his hypocrisy, nor his self-deceptions and illusions, nor whether or not Mr. Craig should resign his senatorial seat; this is about America’s paranoid homophobia.
Assume, for the purposes of this discussion, that Mr. Craig did everything with which the arresting officer charged him. Assume that he entered a particular toilet stall in a particular men’s restroom in a Minnesota airport. Assume that he touched the officer’s foot, in the next stall, with his foot (both men were apparently wearing shoes at the point of this conduct). Assume that Mr. Craig then made a particular hand signal below the level of stall divider with, assuming, the intent to arrange for asexual encounter with the officer.
Assume all of that, and now tell me what crime Senator Craig committed. Disorderly conduct? The Minnesota criminal code defines the offense of disorderly conduct as:
609.72 DISORDERLY CONDUCT.
Subdivision 1. Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having 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, is guilty of disorderly conduct, which is a misdemeanor:
(1) Engages in brawling or fighting; or
(2) Disturbs an assembly or meeting, not unlawful in its character; or
(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.
This statute establishes three elements of disorderly conduct: 1) committing one of the three enumerated conducts; 2) knowing or having reason to know that it will alarm, anger, et cetera; 3) others. Note, especially that it does not matter whether the offending conduct is committed in a public or private space. Note that the offense is inherently subjective in the sense that it devolves upon the offense that might be taken by “others”. Note, finally, that the “others” do not have to actually be offended, alarmed, angered or et cetera.
So, does Mr. Craig’s restroom peccadilloes amount to a violation of Section 609.72? The first two enumerated categories of conduct do not apply. As far as we know Craig and the officer exchanged no words prior to the arrest. By any stretch of the imagination Craig’s conduct cannot be viewed as boisterous or noisy. The offense, therefore, depends on whether touching another person’s foot and making a peculiar hand gesture constitute “offensive, obscene [or] abusive” conduct.
Certainly an unintentional touching of another’s foot by your foot is not explicitly offensive. Have you never accidentally stepped on someone’s foot? A shod foot briefly making light contact with another foot is patently not obscene or abusive. An apology may be warranted, but not a criminal prosecution. Ever make any odd, but innocuous gestures? I do, and there is no way it can constitute offense, obscenity or abuse.
Make no mistake, what is being punished here is the presumed intent of one man to have sex with another man. Mere intent to have sex with another person is offensive, obscene and abusive in the great state of Minnesota. Keep in mind, now, that there was no actually sexual conduct of any kind, there was no contact with any genitalia, no hug, no squeeze, no leer or ogle or come hither look. Senator Craig was arrested and prosecuted for having the intent to have sex.
Would the arrest and prosecution have gone forward if the target of Mr. Craig’s lascivious intent had been a woman instead of a man? Remove the “action” to the airport bar, let Craig hit on a woman, let there be a furtive touch and non-verbal signal. Whatever his intent, would anyone want to charge the senator with a crime?
Instead of rejecting Senator Craig’s motion to withdraw his guilty plea, which strictly on its own merits was doomed to failure, the reviewing court should have dismissed all charges, ordered the record of the arrest expunged, and censured the trial judge, the prosecutor, the arresting officer and any supervising officer. The mere intent to have sex cannot constitute disorderly conduct, and neither can a few clumsy “pick up” lines. It is not just the job, but the duty of our law enforcement and judicial officers to ensure that arrests, prosecutions and convictions must be supported by the law.
Republican, Democrat, Independent or apolitical, this is not about politics. This is not about whether yet another politician should or should resign. This is about the paranoid persecution of gay men in this supposedly civilized country.
Senator Larry Craig infamously should learn to keep to himself in any public restroom. His attempt to have his (insanely misguided) plea of guilty to misdemeanor disorderly conduct has been rejected. But this is not really about the republican senator, nor his hypocrisy, nor his self-deceptions and illusions, nor whether or not Mr. Craig should resign his senatorial seat; this is about America’s paranoid homophobia.
Assume, for the purposes of this discussion, that Mr. Craig did everything with which the arresting officer charged him. Assume that he entered a particular toilet stall in a particular men’s restroom in a Minnesota airport. Assume that he touched the officer’s foot, in the next stall, with his foot (both men were apparently wearing shoes at the point of this conduct). Assume that Mr. Craig then made a particular hand signal below the level of stall divider with, assuming, the intent to arrange for asexual encounter with the officer.
Assume all of that, and now tell me what crime Senator Craig committed. Disorderly conduct? The Minnesota criminal code defines the offense of disorderly conduct as:
609.72 DISORDERLY CONDUCT.
Subdivision 1. Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having 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, is guilty of disorderly conduct, which is a misdemeanor:
(1) Engages in brawling or fighting; or
(2) Disturbs an assembly or meeting, not unlawful in its character; or
(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.
This statute establishes three elements of disorderly conduct: 1) committing one of the three enumerated conducts; 2) knowing or having reason to know that it will alarm, anger, et cetera; 3) others. Note, especially that it does not matter whether the offending conduct is committed in a public or private space. Note that the offense is inherently subjective in the sense that it devolves upon the offense that might be taken by “others”. Note, finally, that the “others” do not have to actually be offended, alarmed, angered or et cetera.
So, does Mr. Craig’s restroom peccadilloes amount to a violation of Section 609.72? The first two enumerated categories of conduct do not apply. As far as we know Craig and the officer exchanged no words prior to the arrest. By any stretch of the imagination Craig’s conduct cannot be viewed as boisterous or noisy. The offense, therefore, depends on whether touching another person’s foot and making a peculiar hand gesture constitute “offensive, obscene [or] abusive” conduct.
Certainly an unintentional touching of another’s foot by your foot is not explicitly offensive. Have you never accidentally stepped on someone’s foot? A shod foot briefly making light contact with another foot is patently not obscene or abusive. An apology may be warranted, but not a criminal prosecution. Ever make any odd, but innocuous gestures? I do, and there is no way it can constitute offense, obscenity or abuse.
Make no mistake, what is being punished here is the presumed intent of one man to have sex with another man. Mere intent to have sex with another person is offensive, obscene and abusive in the great state of Minnesota. Keep in mind, now, that there was no actually sexual conduct of any kind, there was no contact with any genitalia, no hug, no squeeze, no leer or ogle or come hither look. Senator Craig was arrested and prosecuted for having the intent to have sex.
Would the arrest and prosecution have gone forward if the target of Mr. Craig’s lascivious intent had been a woman instead of a man? Remove the “action” to the airport bar, let Craig hit on a woman, let there be a furtive touch and non-verbal signal. Whatever his intent, would anyone want to charge the senator with a crime?
Instead of rejecting Senator Craig’s motion to withdraw his guilty plea, which strictly on its own merits was doomed to failure, the reviewing court should have dismissed all charges, ordered the record of the arrest expunged, and censured the trial judge, the prosecutor, the arresting officer and any supervising officer. The mere intent to have sex cannot constitute disorderly conduct, and neither can a few clumsy “pick up” lines. It is not just the job, but the duty of our law enforcement and judicial officers to ensure that arrests, prosecutions and convictions must be supported by the law.
Republican, Democrat, Independent or apolitical, this is not about politics. This is not about whether yet another politician should or should resign. This is about the paranoid persecution of gay men in this supposedly civilized country.
posted by Brian Malone | 11:58 AM
1 Comments:
Ah, you lawyers!
Now you want the law to be applied in a fair and just manner. What kind of foolishness is that?
BTW, former President Carter should probably not visit Minnesota as he publicly confessed he sometimes had lecherous thoughts and intent, even semi-intent, seems to prosecutable in that state.
Dan
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