Senator Craig: Victim of Entrapment Targeting Queer People

Upon reflection I'd like to modify my statement that Senator Craig did nothing that wasn't consensual. Admittedly he peeked into the policeman's stall. I'm not gonna say that that was a brilliant move on his part. That's pretty gross. However I don't feel like that's something that someone should have to resign or get arrested over.

Sarah Kernshaw has an intriguing (and occasionally infuriating) article in the New York Times about the issue of entrapment and whether things like ogling/leering/peeping in person should be crimes. As she says "when is a leer too long and an ogle illegal? What is the legal standard on staring?" While peering into someone else's stall is something that people should be doing, I don't think we should be criminalizing it. What is an appropriate legal punishment for peeping? Certainly not incarceration. We already have a big enough problem with overflowing prisons in this country. Each time we decide to criminalize something, we should first take a long, hard look at what the appropriate punishment should be if someone commits that "crime."

And what "crime" did Senator Craig even commit? Asking for consensual sex is now a crime? There's no evidence that he even intended to have sex in a bathroom, and even if he did I'm not sure that that should BE a crime. As Laura MacDonald says in her awesome article in The New York Times, "Public sex is certainly a nuisance, but criminalizing consensual acts does not help." She then cites a study conducted by Laud Humphreys in 1970.

Humphreys conducted an extensive investigation into the public-bathroom-sex scene and found that there is always a call-and-response system for eliciting anonymous sex that would weed out any uninterested persons "after that first tap or cough or look went unnoticed." Thus, he concludes that "on the basis of extensive and systematic observation, I doubt the veracity of any person (detective or otherwise) who claims to have been 'molested' in such a setting without first having 'given his consent.' "

This leads me to the question of who exactly the police are supposedly protecting in this bathroom sting scenario. They can't be protecting any adult males who might be in the stalls, because in order for the rendezvous to occur, it would have to be validated several times on both sides by signals of consent.

Sarah Kernshaw (New York Times) suggests that they're protecting the hypothetical teenage boys who might be using that bathroom. First of all, let me point out that any sex occurring with underaged boys would still be consensual. However, addressing the underaged issue, I think it would be very difficult to prove that anyone who was looking for anonymous sex in an airport bathroom was specifically looking for sex with an underaged boy. In fact, I think it's pretty unlikely that anyone would even look for underaged sex in an airport bathroom. Most people in airports are adults, and any underaged kids are most likely traveling with family and thus not very likely to have a lot of alone time to have anonymous sex in a bathroom. In any case, an adult policeman couldn't accuse Senator Craig of looking for sex with an underaged person because the policeman himself would have been of-age.

So if the police aren't protecting adult men (b/c the sex is consensual), and they don't seem to be attempting to protect underaged boys (because they're not making efforts to prove that that's what's going on), then who exactly are they trying to protect? And from what? The only thing I can assume is that they're trying to protect people from their own decisions to have consensual anonymous sex.

Once again, consensual sex is not against the law. Anonymous sex is not against the law. Gay sex is (thankfully) no longer against the law. So the police are protecting people from their decisions to do things that are perfectly legal. In which case, they're appointing themselves as the enforcers of personal morality, which I'm pretty sure isn't in their job description.

On another note, it seems clear to me that Senator Craig was a victim of entrapment because the call and response system would not have continued if his actions had not been reciprocated. A guy looking for anonymous gay sex would have to be crazy to push himself on someone who had shown no sign of being interested. At the very least he would probably get a disgusted look and a rude brush-off. At the worst he could be beaten bloody, harassed, stalked, etc etc. So if he continued along his call-and-response path, it must have been because the policeman responded to his advances. And if the policeman responded to his advances, then once again the question becomes: what crime, exactly, did Senator Craig commit????

However, not only was Senator Craig a victim of entrapment. He was a victim of a police sting that specifically target gay men (who, let me say again, were doing nothing except hoping for some consensual sex. I.E. NOT A CRIME!). Last time I checked, the police are supposed to be there to enforce the law and to protect people. Not to be the self-appointed morality squad and to target populations that are already the victims of hate crimes. If you want to stop sex in public places, go right ahead, just make sure that a). there's a law against it and b). that it's actually happening before you go around arresting people. In other words, wait until you know the crime is happening before you punish people for it.



N.B. Sorry no links to the New York Times articles--I read them in hardcopy. They're from the Sunday, Sept 2, 2007 Week in Review section. "When Fighting Crime Means Enticing Crime" by Sarah Kershaw and "America's Toe Tapping Menace" by Laura M. MacDonald.