For those not following the news, Senator Craig was arrested in a mens room at the Minneapolis-St. Paul International Airport back in June of this year. He was charged with (and plead guilty to) disorderly conduct. But he was arrested for lewd conduct (specifically, trying to pick-up an undercover deputy). The arresting officer wrote wrote in his report that Craig peered into his stall, then occupied the next stall and...
Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct.... I saw Craig swipe his hand under the stall divider for a few seconds....Craig swiped his hand again for a few seconds in the same motion.... The report goes on to document that Craig did this for a while, leading the officer to believe that he was trying to solicit a sexual encounter. He arrested the man, only later to learn that Craig is a United States senator. Later in the report, the officer indicates what Craig said in a post Miranda interview (meaning, after the Senator had been reminded of his 5th and 6th amendment rights.
Craig stated the following.
- He is a commuter
- He went into the bathroom
- He was standing outside of the stalls for 1-2 minutes waiting for the stall
- He has a wide stance when going to the bathroom and that his foot may have touched mine
- He reached down with his right hand to pick up a piece of paper that was on the floor
These are all plausible (if creepy) bathroom behaviors. However, that's not Balko's point. While not condoning the actual engagement of sexual activity in a public bathroom, he asks:
Is it really illegal to try to find a sexual partner in a public bathroom using code? How would that be any different than looking for a sexual partner at a dance club, be it using code, pick-up lines, or any thing else in your singles arsenal?.
I'm inclined to agree. While I agree with public decency laws prohibiting of sexual behavior in public places, Craig wasn't arrested for that. He was arrested for trying to pick someone up. And, he didn't try to pick someone up in an overt, offensive way. Had he walked up to someone with a wink and a nod and explicitly said... "hey, how about it?" I would support a charge of Harassment. But he was using an obscure code that effectively keeps those of us who are blissfully ignorant in that state.
Yeah, it's creepy. (Of course, I find many of the heterosexual mating rituals in the bar scene to be equally creepy). And, there's a perverse pleasure in seeing a hypocrite called to task. But at the end of the day, one has to wonder if we should be allowing the state to criminalize mate selection.