[Vision2020] Senator Larry Craig Challenges Guilty Plea

Ted Moffett starbliss at gmail.com
Sat Sep 29 15:50:32 PDT 2007


In the following comments, I am not stating what I think is proper conduct
in these sorts of situations.  I personally do not think public bathrooms
should be used as "pick-up" places, nor as places for any other conduct (no
second hand tobacco smoke please!) beyond the usual utility.

I am not claiming to know exactly what the law in Minnesota states, nor what
Craig's conduct exactly was, nor what he exactly intended by that conduct,
nor exactly what behavior the police officer involved did or did not engage
in that may have "invited" Craig to make contact, nor exactly how well or
not the officer documented exactly what Craig did.  I offer these comments
to raise points that it seems, from my layman's perspective (no law degree),
should be fully addressed to explore all the legal and ethical complexities
of this case, apart from the emotional biases, partisanship and assumptions
of "guilty till proven innocent" that have run rampant.  Yes, Craig pled
guilty, but there are various situations where those facing charges will
plead guilty when their guilt is still open to question, and even in cases
where the accused knows they are innocent.  This is well known.

The account of Craig's conduct in the bathroom, as far as I know, is based
on Craig's or the officers account.  There are no other witnesses that are
cited.  There are no video or audio documents of the encounter.  How long
did Craig stare into the stall?  There is no objective record of this time
period, like a video with a clock would offer.  Is it beyond the realm of
possibility that the officer dislikes politicians of Craig's persuasion, and
is thus inclined to slant his account of Craig's conduct against Craig?  And
even if not, there is no doubt that law enforcement will sometimes slant
their accounts dealing with suspects placed under arrest to ensure the
arrest appears as justified as possible, even if they have no "bias" against
the accused.

Assuming Craig was open to the possibility of a "meeting" of some sort in
the bathroom, was the officer giving any signals well known to be
"interpreted" as an invitation?  If so, the officer was inviting Craig to
make some sort of contact. Thus Craig's intention in this context may not
have been to invade anyones privacy who was not inviting such an invasion.

Consider that Craig never touched the officer beyond bumping feet, nor said
a word to him, till the officer identified himself.  Furthermore, how far do
assumptions of privacy extend in a public bathroom?  We all know that men
stand next to each other in a rather "exposed" condition in bathrooms, and
if someone glances the "wrong" way, assumptions of various intentions may
arise.  In a stall, of course, there is more of an assumption of privacy,
but stalls are usually not designed to be so private that no outside view is
possible, even for someone not intending to look into the stall.  The gaps
around the door are often surprisingly large.  I imagine it might be
relevant to measure how large these stall door gaps are, to determine how
easily someone could innocently glance into a stall.  They also often have
large open areas on the bottom of the doors and walls, which now that
I think about it, seems rather odd.  Why don't bathroom stall doors and
walls always extend nearly to the floor, with door jams and wall gaps that
cannot be easily glanced through, if protecting privacy is a major concern?
This would render the alleged conduct in this case much more difficult.

Anyway, the assumption of total privacy, it seems, is perhaps not reasonable
in a public restroom.  Thus the gross misdemeanor charge of invasion of
privacy might be challenged on the basis that first, the officer invited his
privacy to be invaded by giving well known signals that he was inviting a
meeting (entrapment?), and that a public restroom offers limited assumptions
of total privacy in the first place.

Also, is inquiring in a bathroom if someone is interested in consensual
adult conduct somewhere else illegal?  There are many laws on the books
regarding sexual conduct of various kinds that are no longer enforced, and
are thus viewed as de facto no longer applicable.  It might be a moot point
whether Craig or the officer specifically asked,  verbally or otherwise,
after the stall gazing and foot bumping, whether the other wanted to get a
room somewhere for consensual adult contact.  The alleged unlawful conduct
Craig engaged in, invasion of privacy and disorderly conduct, had already
occurred.  However, if actual explicit conduct was agreed upon to occur in
the bathroom, this would rise to a much clearer expression of intention to
commit "disorderly conduct," or sex in a public place.  This did not occur.

This case has been portrayed in the media that Craig was caught in a
bathroom sex sting operation.  Then why do the charges against Craig
explicitly have nothing to do with sex?  The exact charges against Craig
could be leveled against a prankster who was peering through the stall door
cracks, laughing, and throwing spit wads at the stall occupant under the
door, with sex the last thing on their minds!  It seems if a bathroom sex
sting operation was the intent, explicit intent to have sex in the bathroom
should have been the standard the officer applied to make an arrest.

As the ACLU case defending Craig points out, it is protected speech for
adults to discuss the possibility of consensual meetings, even in
bathrooms.  The non verbal "signals" exchanged regarding the possibility of
meetings might thus be protected speech, an interpretation that no doubt
will not be met with equanimity by all.  However, if they engage in sex in
the bathroom, charges of having sex in a public place, or disturbing the
peace, or disorderly conduct apply, not laws against discussing the
possibility of consensual adult contact that may occur somewhere private, if
such laws exist, which would be or are unconstitutional, if you take the
ACLU's view.

Ted Moffett

On 9/28/07, Sunil Ramalingam <sunilramalingam at hotmail.com> wrote:
> Paul,
> Craig was offered a one-for-one: Plead to one, the other goes away.  It's
> a
> standard offer here too.  I'm inclined to agree with you that the conduct
> involved in the charge he pled to is not particularly egregious; if you
> came
> to me and had been charged with only that one count, we might well want to
> fight it on a number of grounds.  And yes, the cop could have built a
> stronger case by waiting it out.  Perhaps he was tired of sitting there
> with
> his pants down.
> But you're looking at it in a vacuum; you can't ignore the other charge,
> which is the more dangerous one for Craig.  Yes, it's possible that one
> stares into space.  I do it too, but not through a crack between toilet
> partitions behind which sits a man I would assume to be defecating, or at
> least half-naked.  I'll bet you don't do that often either.
> The officer's testimony would contradict that explanation; he says Craig
> was
> deliberately staring at him.  It's possible he's wrong, but if Craig gets
> his plea back and goes to trial, seems to me he would have to take the
> stand
> to refute the cop's testimony.  Does he really want to be cross-examined
> on
> that point?  I don't think so.
> Sunil
> >From: Paul Rumelhart <godshatter at yahoo.com>
> >To: Tom Hansen <thansen at moscow.com>
> >CC: 'Donovan Arnold' <donovanjarnold2005 at yahoo.com>,  'Sunil Ramalingam'
> ><sunilramalingam at hotmail.com>,  vision2020 at moscow.com
> >Subject: Re: [Vision2020] Senator Larry Craig Challenges Guilty Plea
> >Date: Thu, 27 Sep 2007 22:00:46 -0700
> >
> >I've posted on this before, but I might as well do it again, I guess.
> >
> >I don't think that Senator Craig should be punished by the law for
> >something as stupid as bumping another man's foot, looking through a
> crack
> >in a door, or moving his hand under the partition. Couldn't the officer
> >have done whatever was expected next, which I presume is to come over to
> >his stall, and wait for him to make an undeniable request for sex
> (verbally
> >or bodily) before arresting him?
> >
> >As for the peeping through the door thing, am I the only person around
> here
> >that will sometimes stare into space when I'm thinking about something
> >deeply, only to "come to" with the realization that I've been staring at
> >someone the entire time? I'm not saying I do this every day, but I've
> done
> >it before. I can't be the only one. I'm not saying that is what happened
> to
> >Craig, but it's definitely possible.
> >
> >I can also see an occasion where someone might want to plead guilty to
> >something they didn't do in an attempt to avoid certain people finding
> out
> >about it. That doesn't speak too highly of him if he did that, but a
> guilty
> >plea to a misdemeanor doesn't mean the person did it absolutely. If you
> >think he is the kind of guy that solicits sex in a public bathroom, why
> is
> >it so unbelievable that he might have lied to gain a perceived advantage?
> >
> >Paul
> >
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