In the Washington Post, political science professor Aaron Belkin criticizes the standard of evidence by which Sen. Craig was arrested on suspicion of lewd conduct, and eventually pleaded guilty to a misdemeanor charge of disorderly conduct.
Craig's case apparently was handled according to the book. But the use of everyday gestures that fall short of sex to mete out punishment for sexual misconduct illustrates a revealing departure from methods that investigators used to carry out sting operations nearly a century ago. Courts used to require a lot more than the tapping of a toe to sustain a conviction for a morals crime.However, as implied by the history Belkin presents, in which the government once hired men to have sex with other men in order to prove the latter guilty of morals crimes, there doesn't seem to be much way to prove someone guilty of soliciting illegal sex -- whether with a prostitute or in a public place -- unless the person's solicitation is verbally clear. If, as police and some gay men discussing the case have claimed, restrooms are a site at which illegal sex often is solicited, then signals probably have to be subtle and non-verbal so as not to attract the attention of others. According to at least one gay man, Craig and the officer he was soliciting had gone about as far as possible before actual sexual activity would begin:
Larry Craig then took his hand, palm upward, and ran it along the bottom of the stall divider so that the individual on the other side of the partition could see Larry's fingers making an inviting "come hither" gesture.Aside from being simultaneously pitying and grossed out that someone would be so desperate for sex that he'd get down in a public bathroom for it -- a difficult epidemiological decision as to whether the sex with strangers or the intimate contact with a filthy floor would be more likely to cause a bacterial infection -- I wonder what Belkin thinks the officer should have done to secure sufficient evidence for the charge.
This gesture has a precise meaning and is universally understood in the men's-room cruising scene. It translates, "Get down on your knees and place your penis underneath the partition so I can touch or fellate it."
Last year I wrote a mock trial criminal problem, in which the defendant was accused of promoting prostitution at a massage parlor and none of the evidence included a verbal offer of sex for money -- only gestures. All four juries, composed predominately of law students, voted to acquit. So I'm aware of legally-trained people's skepticism of the level of evidence required to convict someone as having, beyond a reasonable doubt, solicited sex. However, I also tried to base my problem on men's accounts of how sexual favors at such establishments are offered, and the use of gestures seems to be nearly universal (to avoid prosecution and in some instances because of language barriers). Someone who alleges that such a crime was committed essentially has to engage in the sexual activity in order to prove that that's what was being offered.
Perhaps we should give up trying to prosecute such crimes altogether, and resign ourselves to rampant prostitution in massage parlors and public sex in men's rooms, correcting only those abuses that directly harm participants or violate non-sex laws (such as trafficking violations of immigration law). If we do, however, we should make that decision about public policy openly, not on the basis of whether a particular method of determining the occurrence of solicitation meets Prof. Belkin's standard of evidence.