Tuesday, August 28, 2007

Dep't of Schadenfreude (Is There a Defense Attorney Good Enough to Get Larry Craig Off, and I Mean in the Criminal Defense Sense, Edition)

by Tom Bozzo

Josh Marshall is a little too kind to Sen. Craig:
With that assumption [that Craig's action would be readily recognizable as cruising for sex], it's still clear that the whole thing didn't get far enough for Craig to 'do' anything lewd...

Given what's described, it seems quite possible that, with a good lawyer, Craig could have beaten the rap.
First of all, part of the cited behavior sounds pretty lewd to me. From the police report:
I [the arresting officer] 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. I was able to see Craig's blue eyes as he looked into my stall.
Maybe the angle is that Craig's eyes appear in his official portrait to be more gray than blue. Or not.

While Craig was cited for "lewd conduct," he was charged with disorderly conduct and "interference with privacy." See section 699.746 of the Minnesota Statutes, specifically 699.746(c):
A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel... a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts... or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.
It would seem reasonable to expect a degree of privacy in a public bathroom stall, and repeatedly looking in an occupied stall among other cited actions would seem to rise to an "intent to intrude," something which Scott Lemieux and Garance Franke-Ruta fail to grasp despite TNH's dispositive comment, "Because straight guys are forever gluing themselves to the cracks in bathroom-stall doors in order to stare for minutes on end at some other guy who's got his trousers down."

Pace commentary about the supposed homophobia of the law, the case here is not, really, about the not generally criminal asking for sex — not that framing it so would exactly help un-dig Craig's particular hole. The peeping criminalized by the "interference with privacy" statute and the harassment covered by interconnected statutes isn't characteristically associated with gay men's behavior. And while there may be some circumstances in which an unwanted proposition should be handled with a polite if firm no, such things can reasonably considered nuisances, especially in highly public places like large hub airports.

Now, Craig pled guilty to disorderly conduct and the interference with privacy charge was dropped. Craig, trying to get on offense, has characterized the guilty plea as an overreaction. Yet it would not be better for him to go to court and lose. Plus, the plain language of the complaint suggests that, far from being caught in a Catch-22, Craig fashioned a very fine quality noose before hanging himself.

So the question is whether there's a plausible exculpatory account to be found via public bathroom behavioral norms. I might otherwise leave this to the restroom etiquette expert, but Dan's amusing posts on the subject are enough to suggest an answer subject to the operation of the intrablogiversal self-correction mechanism.

The short answer is: are you kidding me?
1. Non-cruising men's room behavior involves keeping at least some distance from strangers.
2. It isn't hard to tell when someone in an adjacent stall is using the toilet for excretory functions in the prompt fashion that airport bathrooms normally encourage by their ambiance.
3. Looking repeatedly into an occupied stall, and indeed looking more than once for longer than strictly needed to determine occupancy, is highly unusual.
4. Based on the sample of me and my colleagues, a bathroom "stance" wide enough to violate stall boundaries is rare in the U.S. male population. If seated, it's darn near impossible short of removing one's pants entirely, which would itself be highly suspicious among bathroom users past age 5 or so.
5. Part of what would seem to make the Northstar Crossing men's room a prime cruising spot is that it isn't a natural choice of bathroom for someone who's merely a harried business traveler. Those would be the facilities closest to the arrival and (if connecting) departure gates.

It's certainly not clear how retention of counsel would lead to a less embarrassing outcome.

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