By Aaron Belkin
Saturday, September 1, 2007
If Sen. Larry Craig is guilty of a serious crime, you'd never know it from listening to the audiotape of his arrest or from reading his arrest record.
Craig entered a Minneapolis airport restroom and fidgeted with his fingers while standing outside an occupied stall, occasionally peering through the crack between the door and the doorframe. After entering an adjacent stall, he sat, tapped his foot and touched the occupant's shoe with his own. Finally, Craig swiped his hand under the stall divider three times, at which point the occupant revealed his police credentials.
Craig later denied that he had done anything wrong and insisted that he is not now and never has been gay. Although homosexuality is not illegal, Craig thought that he could protect himself simply by claiming a heterosexual identity.
The arresting officer, however, believed that Craig wanted to have sex with him, and recognized the tapping of Craig's right foot "as a signal used by persons wishing to engage in lewd conduct." Craig was arrested after only six minutes.
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.
In 1919 the Navy hired "decoys" to frequent the lobby of the YMCA in Newport, R.I. Orchestrated by officers at the local Naval Training Station, the cleanup campaign sought to eliminate gay men from the ranks. Following an introduction, decoys would accompany their suspects to a hotel room and then have sex. At least three dozen sailors and civilians were arrested, and many ended up in jail.
According to conventions of the day, if men confined themselves to masculine behaviors and sex roles, they could engage in sex with other men without inviting accusations of being gay. Because perversion was seen primarily as a function of effeminate mannerisms and passive sexual tastes, government decoys could have sex with gay men with impunity as long as they assumed the active position during those encounters. Or so the Navy assumed.
When the 1919 sting operation ensnared a local minister, the Episcopal Church fought back, and what had been a local operation became a national scandal that almost ended the burgeoning political career of Franklin D. Roosevelt, who was then assistant secretary of the Navy.
The church persuaded the Navy and the Senate to investigate the sting operation, and when it became apparent that the military had enlisted heterosexuals to engage in sex with other men, there was a public outcry.
Thus began the shift away from sting operations involving sex acts with government agents, and a recognition by military and other investigators that they would have to rely on evidence short of actual sexual conduct as the basis for convictions. Historian David Johnson has shown that under the Pervert Elimination Campaign in the late 1940s, U.S. Park Police agents in the District of Columbia charged hundreds of men in gay cruising areas with disorderly conduct, indecency and other crimes, even though many had done nothing explicit.
Craig joins the growing list of people who have been charged with morals crimes for innocuous behavior.
While it may be that people who behave as Craig did are looking for sex, there remains an important difference between seeking sex and having public sex. Society certainly has a right to uphold standards of public decorum, but increasing criminalization of harmless behavior opens up a space for injustice unevenly applied.
As a federal judge observed in the 1948 case of a D.C. man who had been arrested for lewd and immoral behavior after inviting an undercover police officer up to his apartment for a drink, "any citizen who answers a stranger's inquiry as to direction, or time, or a request for a dime or a match is liable to be threatened with an accusation of this sort."
One particularly egregious example of how the judge's fear has become a legal reality is the fact that, as Harvard professor Janet Halley has shown, the "don't ask, don't tell" policy allows military judges to treat hand-holding and other benign gestures as the legal equivalent of sex.
Sen. Craig, who voted to enact "don't ask, don't tell" in 1993, got caught up in a system that looks a lot like the one he helped create, a system in which innocent gestures can invite punishment. It is a trap that he and others should not have to fear.
Aaron Belkin is an associate professor of political science at the University of California-Santa Barbara and director of UCSB's Palm Center, which has done studies of military policy toward gay men, lesbians and other sexual minorities.