Senator Craig (R-Idaho) was recently arrested in the men’s restroom at Minneapolis-St. Paul International Airport on charges of “Interference with Privacy” and “Disorderly Conduct”. Now I recommend everyone read the accusations since it’s pretty funny to hear about a republican senator soliciting gay sex in an airport restroom but I’m baffled and slightly disturbed by the charges. If the officer in the case is to be believed Senator Craig seems to have acted in a way that strongly suggests he was trying to solicit anonymous gay sex in the restroom but how does this qualify as either interference with privacy or disorderly conduct?

The relevant parts of the interference with privacy statute forbid the following behavior:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70 subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and (2) does so with intent to intrude upon or interfere with the privacy of the occupant

Yes, some courts have (reasonably) ruled that peeking into restroom stalls to catch a glimpse of someone’s privates qualifies as an offense under this provision. However, Senator Craig obviously did not peek into the stall “with the intent to intrude or interfere with the privacy of the occupant.” Just the opposite, Craig presumably peeked into that stall in an attempt to avoid embarrassing the occupant (and himself) with an unwanted solicitation for gay sex and was likely hoping to see someone fully clothed (and therefore occupying the stall for other reasons)¹.

The relevant parts of the disorderly conduct statute read as follows:

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: … (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.

In my opinion the breadth of this statute and the qualification “reasonably” make it unconstitutionally vague. Furthermore the fact that the statute criminalizes merely “offensive” conduct that is likely to “reasonably to arouse alarm, anger, or resentment” means it runs afoul of the first amendment as well. After all chanting “abortion is murder” outside of a family planning facility is offensive conduct that reasonably arouses anger and resentment. Still, even if we ignore these problems and try to offer a ‘reasonable’ interpretation of this law that doesn’t include behavior that obviously wasn’t intended to be criminalized I don’t think it supports a charge against Senator Craig.

Suppose I pick up my girlfriend at the airport and while waiting for our bags I verbalize my intention to anally violate her as soon as we get home. Now this might lack class and be somewhat rude but surely it isn’t the sort of conduct that the legislature meant to include in their definition of disorderly conduct. Even if my girlfriend’s friend is present and I let her know she is welcome to join in it still doesn’t qualify as disorderly conduct, even if she is offended by the offer. In short even unwanted solicitations to engage in sexual activity aren’t enough to qualify as disorderly conduct². The fact that Senator Craig was suggesting an illegal act (indecent exposure/public sex) isn’t relevant since only the conduct Craig actually engaged in is relevant to this statute. The only thing that distinguishes Senator Craig’s solicitation from those we are certain don’t qualify as illegal activity is the greater distaste many people have for the sort of sex he suggested. So not only would this charge likely be dismissed by the court (at least on appeal) it should be obvious even to the police that it’s bogus.

Now some sites are already gloating about a reactionary senator getting caught soliciting anonymous gay sex, and I can’t deny feeling a certain satisfaction myself, but I’m horrified at the behavior of the police in bringing these sorts of charges. Unfortunately, do to the embarrassing nature of the accusations I suspect most of those charged plead guilty like Senator Craig and try and make the charges disappear. Now I agree we might want to discourage anonymous sex in airport restrooms (though I’m suspect we could put our police officers to better uses) but that’s not an excuse to charge people with what amounts to a crime of ‘being disgusting.’

Fair treatment and freedom from puritanical moral impulses requires that we don’t enforce, or better yet make, laws which penalize some vague notion of acting inappropriately. If you want to charge people for soliciting (but not having) anonymous sex in public restrooms you need to pass a law against it. Most certainly we shouldn’t have our police going around and charging people for things the police should damn well know aren’t really illegal and counting on embarrassment to make sure they don’t protest. That is blackmail and harassment not good police work.

UPDATE: Apparently I’m not the only one who feels like this.