Newspaper Page Text
COP IN STALL
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the first place. The logical way to suppress
sex acts in a public restroom is to patrol the
restroom with uniformed officers and to post
notices announcing the patrols and warn
ing users of the bathroom of recent reports
regarding sex acts in the restroom. The logical
way, however, is not the police state way, and
Minneapolis airport police elected instead to
stage an undercover sex sting and to focus on
arresting people for innocuous behavior if in
the opinion of the police they were signaling
a desire to engage in lewd conduct. Success of
the operation therefore turned on the efforts
of policemen of the soul. When it was shut
down three months later, 41 men had been
arrested under the operation by police decoys.
Interestingly, straight men are rarely both
ered by men seeking public bathroom sex.
There is a scientific research on the rituals
used by men seeking sex with other men in
public places. It shows that a person seek
ing to initiate such sex "engages in safe
guards to ensure that any physical advance
will be reciprocated," writes expert Laura M.
MacDonald. The initiator therefore adheres to
"an elaborate series of codes that require the
proper response for the initiator to continue.
Put simply, a straight man would be left alone
after that first tap or cough or look went
unanswered," MacDonald adds. "[These] are all
parts of a delicate ritual of call and answer."
Sociologists have even categorized the suc
cessive ritual stages undertaken by initiators:
approach, positioning, signaling, maneuver
ing, contracting, foreplay, payoff. A classic
study of male same-sex sexual activities in
public bathrooms concludes: "I doubt the
veracity of any person (detective or otherwise)
who claims to have been 'molested' in such
a setting without having first 'given his con
sent.'" Any detective.
Karsnia's community bathroom policing
must be put in historical context. American
police have a long history, dating back to the
so-called "Pervert Elimination Campaign" in
the 1940s, of using handsome young under
cover officers who feign a desire to engage
in sexual activities, in order to entrap males
seeking same-sex sex. A common police prac
tice was to create "honey traps"—stationing
handsome undercover officers in public men's
rooms where they would loiter suggestively
and arrest men lured into verbally proposition
ing them. Detective Karsnia carried this under
cover technique a bit further. He arrested men
who had never verbally propositioned him,
men with whom he had never exchanged a
word. After encounters as brief as six minutes.
Assume for present purposes that Karsnia is
truthful in claiming that Sen. Craig engaged in
the toe tapping and other pre-arrest conduct
described in Karsnia's official report. Assume
also that Karsnia was right in concluding that
Craig's conduct amounted to a signal that
Craig desired to engage in lewd acts with
Karsnia. Assuming all of this, and keeping in
mind the rituals followed by men seeking sex
in restrooms, it seems unlikely that Karsnia
did not in some way intentionally signal to
Craig a pretended willingness to have sex.
Thus, if Craig actually did what Karsnia says he
did, Karsnia must previously have signaled to
Craig a willingness for sex. If Craig had sent
out a signal for having sex, and Karsnia had
not responded favorably, then Karsnia would
have been (eft alone from then on.
One of the first things Craig said to Karsnia
during the recorded interrogation session was,
"You solicited me," and later in that session
he told Karsnia, "But you shouldn't be out
to entrap people, either." This suggests that
Karsnia did something, made some gesture,
suggesting a willingness for sex. Of course,
the other possibility is that Karsnia's account
of what Craig did is essentially false and that
Craig did not signal anything. Under either
possibility, we are dealing with police state-
type police conduct that is sinister.
Anticipatory Arrest
In Sen. Craig's case, misdemeanor criminal
liability was stretched to the breaking point
to authorize an anticipatory arrest. The inter
ference with privacy charge, later dropped,
required taking a statute enacted to ban use
of hidden cameras in women's rooms and
twisting it to criminalize the harmless con
duct of a man inside a toilet stall about to be
arrested in a bathroom sex sting by a plain
clothes detective in the adjacent stall.
Turning to the other crime for which Craig
was arrested, the Minnesota disorderly conduct
statute had to be extended to its absolute
maximum to allow Craig's arrest. "Disorderly
conduct," Minnesota law school professor Dale
Carpenter says, "is a notoriously nebulous
crime, allowing police wide discretion in mak
ing arrests and charges for conduct that is
little more than bothersome to police or to
others." Disorderly conduct statutes usually
contain broad catch-all provisions, and the
Minnesota disorderly conduct statute is typical
of this trend.
In the case of Sen. Craig, the reach of the
statute was extended to its furthest degree.
He was not charged with breach of or dis
turbing the peace. He was not charged with
alarming, angering or disturbing others. He
was not charged with any obscene, boisterous
or noisy conduct. Instead, based on a word
less six-minute encounter, Craig was charged
with engaging in offensive or abusive conduct
tending reasonably to arouse alarm, anger
or resentment in others, having reasonable
grounds to know that it would tend to a^arrn,
anger or disturb others. The theory was that
Craig was guilty of this peculiar species of the
offense of disorderly conduct because he had
entered Karsnia's stall with his eyes, hands
and foot, and because this would cause anger,
alarm or resentment in a reasonable person,
even though obviously the conduct did not
tend to cause, or actually cause, anger, alarm
or resentment in police officer Karsnia. This is
preventive policing carried way, way too far.
Police State Mentality
The investigation and arrest of Sen. Larry
Craig is indicative that here in America we are
developing the sinister side of the policeman's
role, that our police are embracing an extrem
ist view of preventive policing more concerned
with attitudes and feelings than overt acts,
and that the police are nurturing a police
state mentality.
The sex sting operation which netted Sen.
Craig is a stunning example of police state-
type overkill. A new kind of American police
man thinks that, in order to nip any crime in
the bud, no matter how minor or harmless, he
must be everywhere—even in public restroom
stalls to rein in toe tappers and foot-sliders.
And when he is an undercover officer sta
tioned on a toilet in a public bathroom, then
truly, as Sen. Craig found out, the officer sit
ting on that proverbial marble throne actually
is in fact a king. In Stalinist Russia, the cop
at the keyhole was king; in today's America,
the cop in the stall is king.
Ben Stein is right: the story of Sen. Larry
Craig's encounter with the bathroom task force
"is a nightmare of out-of-control police. [All]
that believe in individual rights should be ral
lying to his defense."
Donald E. Wilkes, Jr.
To read a detailed chronology of the Larry Craig case,
visit flagpole.com.
777
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