Larry Craig – Day 3: The fallout, and misc. thoughts

Senator Larry CraigThree days into the Larry Craig scandal, and the discussion surrounding the news of his June arrest and subsequent August guilty shows no signs of abating.

The latest update: The WH is “disappointed.” Two prominent Republican Senators (McCain and Coleman) have asked that Craig resign from the Senate (here’s video of McCain’s statement). Rep. Pete Hoekstra (R-MI) has also called for Craig to step down. Presidential candidate Mike Huckbaee remarked that Craig has some “‘splainin’ to do.” Yesterday, in a badly orchestrated public statement, Craig said he would not resign, but today he did agree to temporarily leave the committees he’s on in the Senate, including the Veteran’s Affairs Committee, where he was the top Republican.

As I noted last night, there was a side discussion brewing yesterday in the blogosphere – both left and right alike – wondering in the aftermath of all this what exactly was Craig’s crime. Slate’s editors had a running email conversation about it yesterday, which captured some of the questions being layed out in the blogosphere. Here’s that Slate piece, along with a sampling of blogosphere discussions on the issue. My comments will follow at the end:

John Dickerson: Yes, I’ve been trying to e-mail everyone the story. It’s quite detailed about the signals men apparently send in bathrooms.

Will Saletan: “Craig tapped his toes several times and moved his foot closer to my foot. I moved my foot up and down slowly.” Is moving your foot up and down a signal of encouragement? Somebody must have a web site that explains the code.

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.

By the way, isn’t this what they got the LBJ aide Walter Jenkins on? Though I think it was in flagrante in that case.

June Thomas: Amen, the police are forever entrapping guys in public restrooms for peeing while gay. Or rather, peeing while wearing nice loafers.

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?

Saletan: Can someone explain the mechanics of how two people are supposed to commit a sex act in a stall where legs are visible from the knee down? Do people just walk in and not notice that four legs are in the stall?

Bill Smee: Just one of several privacy challenges that must be overcome…. At least the roller bag at the front of the stall blocks any direct walk-ins on the conjugal commode.

Dickerson: I’m a fan of someone sticking up for Craig. There’s more inappropriate airport behavior in the security pat down line.

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.

Plotz, my cubicle-mate, asked why Craig would want to have sex in an airport. Then, channeling Saletan, he said, “Oh, it was a layover.”

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.

I understand why they want to stop a bathroom from becoming a den of blowjobs, but this seems pathetic. Also—there is little deterrent effect in doing this generally. It is an airport, so by definition it caters to people in transit, who aren’t going to know that it has become a police target.

Dickerson: Seems to me you should have to go a bit beyond tapping your toes.

Here’s the complaint:

“I could see Craig look through the crack in the door from his position. Craig would look down at his hands, ‘fidget’ with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes” the report states.

Craig then entered the stall next to Karsnia’s and placed his roller bag against the front of the stall door.

“My experience has shown that individuals engaging in lewd conduct use their bags to block the view from the front of their stall” Karsnia stated in his report. “From my seated position, I could observe the shoes and ankles of Craig seated to the left of me.”

Craig was wearing dress pants with black dress shoes.

“At 1216 hours, Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct. Craig tapped his toes several times and moves his foot closer to my foot. I moved my foot up and down slowly. While this was occurring, the male in the stall to my right was still present. I could hear several unknown persons in the restroom that appeared to use the restroom for its intended use. The presence of others did not seem to deter Craig as he moved his right foot so that it touched the side of my left foot which was within my stall area” the report states.

Craig then proceeded to swipe his hand under the stall divider several times, and Karsnia noted in his report that “I could … see Craig had a gold ring on his ring finger as his hand was on my side of the stall divider.”

We’ve all become familiar this week with what “tapping” one’s feet in the men’s restroom in a certain way constitutes. Gay Orbit confirms:

I’m 37 years old. No, that’s not the secret. I have no idea how old Henry is, but I bet he knows this secret, too. It may not be true of younger gay people, because, quite frankly, they live in a society more open to their sexual orientation than we did. They don’t have to worry as much about what people think of their sex lives as we did when we were their age.

37 is not old. But it’s old enough to know how to get laid on the down low.

I’ve never had a sexual encounter in a public bathroom. Quite honestly, I think I would have been too scared even if I wanted to. But I know exactly how to get a blow job in a stall if I wanted it. And I always knew.

Tap, Tap, Tap.

Any gay man who is at least my age knows what tapping your foot while sitting on the john in a public toilet means. It means you are available. And here’s another thing. Any gay man at least my age knows the difference between some guy in a stall tapping his foot to the beat of the latest song on his Walkman and a

Tap, Tap, Tap

that means you are “looking.”

Here’s the thing: The cops know it, too. If a man in the stall next door goes, tappity, tap, tap, tappity, tap, tap, the cop knows that the person is not looking. If the person is going

Tap, Tap, Tap

it’s plenty obvious.

So unless people out there believe the police officer was flat out lying, we can all agree that Senator Craig was soliciting for sex in a public bathroom.

Captain Ed makes some good points in this post:

Let’s stipulate that all of these actions are a well-known prelude to sexual encounters, even encounters conducted in public restrooms. Even so, nothing Craig did should constitute a crime, with the possible extreme interpretation of battery by touching his foot to the undercover officer. A series of signals that consist of foot-tapping and hand-swiping harms no one but the reputation of the man using them.

Had Craig actually exposed his genitalia in a public manner for the purposes of sexual gratification, that would have been a crime. Had he offered to pay for the officer’s sexual services, that would have been a crime. How does foot-tapping and hand-swiping amount to disorderly conduct?

Contrast this to a prostitution bust, for instance. People cannot be convicted or even arrested for signaling prostitutes for sexual services; an explicit offer of sex in exchange for money must take place. Tapping feet, hand signals, and brushing up against the toes of a prostitute on the street aren’t enough to get someone arrested. In sting operations, police have to get that explicit offer before making an arrest.

What Craig did was monumentally stupid and deservedly should shut down his career in the Senate, but all it comprised (in itself) was an offer of consensual sex, and there is nothing inherently illegal in an offer of consensual sex. Anyone signaled in such a manner could just as well tell the signaller to get lost, just as they could in a bar or nightclub. No one was harmed, and no crime was committed, even though many view the behavior as distasteful and out of place. As long as no sexual act takes place in the public area, I’d say no crime takes place. That’s why I think David Vitter should be seen as at least as culpable as Craig, and possibly more so.

Radly Balko commented along similar lines:

I guess that loathe as I am to sympathize with Craig, I’m with the “why was this a crime?” crowd. Laws against public sex are understandable. Laws against merely soliciting someone for sex are something else entirely. Might as well sent the SWAT teams into singles bars too, then. Maybe the foot tapping and paper-snatching really are code for “let’s do it in the stall.” I don’t know. But Craig didn’t actually engage in the lewd behavior. Didn’t get that far. Aside from the peeping charge, which was thrown out, the only thing I can see that he’s guilty of is looking for a willing sex partner. And I can’t see how that is or should be a crime.

Not so fast, says lawyer Beldar (emphasis his):

Mr. Balko’s confusion comes from his assumption that the peeping charge was “thrown out.” It wasn’t. Instead, the peeping charge was pleaded out — and that’s a very, very big difference in this context. In fact, it’s the peeping charge that almost certainly explains and makes justifiable Craig’s plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).


The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Dale Carpenter cries foul:

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.

I’ve seen some bloggers who suggested/implied that the reason this was treated as a crime in the first place was, unfairly, because it was involved a gay man who wanted to have sex with another man. Well, considering that the Minneapolis-St. Paul International Airport has a duty and obligation to make sure their public restrooms are safe for all travellers, employees, etc, if they had numerous complaints about their male restrooms being used as pick up joints between men, then they don’t really have a choice but to ask for help from the police on catching gay males whose intent it is to have sex in a public restroom – a restroom, I don’t have to remind anyone, that most certainly will have young male children and their dads come in with them, and some young adults who could inadvertantly witness the men in the act.

If gay males didn’t have a history of utilizing public restrooms (see here for an example, as well as here), bathhouses (another of example of that can be found here), and public parks as pick up joints for sex, I could understand the outcry about ‘why was this treated as though it was a crime? He made an advance that was rejected and that should be the end of it.” But the fact is that history exists, as any honest gay man will tell you (and let me state for the record before I get jumped that I know not every gay male engages in this behavior) and I have no doubt in my mind that Craig’s intent (and intent is very important in law) was to have sex in that bathroom.

Public restrooms, parks, beaches, etc are no place for sexual escapades between either sex, and kids along with other law-abiding citizens should be protected from having to witness and, heaven forbid, possibly being dragged into the acts themselves. There’s a place strangers should go if they want to engage in sexual activity. It’s called a “hotel room.”

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