Should Larry Craig Have Been Arrested?

By Justin Gardner | Related entries in Law, Sexuality

That’s the question floating around the blogosphere today, and I think the people who’re asking it kind of have a point.

First, we have this from Volokh’s Larry Carpenter about Minnesota law:

From the arrest report, here’s what Craig allegedly did: (1) put a duffel bag at the front of his stall; (2) peered through a crack into an adjoining stall; (3) tapped his foot; (4) moved his shoe over until it touched an officer’s; and (4) ran his fingers along the underside of the stall divider. That’s it.

Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer’s version of events is correct. But assuming for the sake of argument that Craig did everything the officer alleged, how was it the basis for a criminal charge that could get him a $1,000 fine and/or ten days in jail?

Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others. The “disorderly conduct” statute to which Craig pleaded guilty provides that one who knowingly “[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is guilty of the misdemeanor of disorderly conduct. Minn. Stat. § 609.72, subd. 1(3) (2004).

So let’s set aside for a moment that fact that Craig inexplicably pleaded guilty to the charges that probably weren’t correct anyway, and let’s take a look at the actual act itself. What exactly happened here? There was no sex, no dirty talk, no flashing. Nothing. Was it offensive, abusive, boisterous, noisy, offensive, obscene, abusive or enough to arouse alarm, anger or resentment in others? Well, maybe the last three, but come on…

Was it creepy? You bet. But it appears as if Larry Craig got arrested for merely putting a vibe out there. And since I think it’s obvious that he was trying to solicit a little attention, should that really be illegal? What if he would have asked the police officer if he wanted to have sex in his hotel room? Would that be illegal? Sure, he tried this in a public restroom, but is that an arrestable offense? Apparently the arresting officer seemed to think so, but it does seem a bit overbearing.

Talking Points Memo has this to say:

Leering stares, foot tapping, a lingering presence. Are any of those, even taken together, what most reasonable people would call criminal? Is it because they happened in a bathroom? God knows they happen every night in bars and other public spaces, among gays and straights.

The folks over at Slate had an email discussion about this and I like John Dickerson’s line the best:

Dickerson: I’m a fan of someone sticking up for Craig. There’s more inappropriate airport behavior in the security pat down line.

Yeah, so maybe I’m missing something, but I tend to agree with the “Craig shouldn’t have been arrested” crowd. Put aisde the question of whether or not he is indeed gay and could be a raging hypocrite. That’s not the point.

Meanwhile, courtesy of TheNewsRoom

I put it to you fine readers…should Larry Craig have been arrested?


This entry was posted on Tuesday, August 28th, 2007 and is filed under Law, Sexuality. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

4 Responses to “Should Larry Craig Have Been Arrested?”

  1. ascap_scab Says:

    Yes, he was properly arrested. What part of “public” restroom don’t you understand?? If perverted Larry Craig wants to cheat on his “wife” with anonymous, possibly diseased men, why should I care?? But for Dog’s sake, go get a room and do it in private.

    Apparently, Craig traveled through the same airport during his weekly trips home and since his previous page scandal involvement, couldn’t get his weekly fix of gay sex in Washington D.C anymore. So instead, he cruised the Minnesota Airport bathrooms during layovers for a quickie before heading home to kiss his beard.

    http://www.idahostatesman.com/localnews/story/143801.html

    Closeted gay dinosaurs like Craig haven’t figures out how to “cruise” in modern society where he could have had his anonymous gay sex in private, you know, like Ted Haggard!!

    http://talkingpointsmemo.com/archives/051809.php

  2. mark snyder Says:

    Doesn’t the whole notion that we have police pretending to be gay so they can arrest gay people for their assumed intentions of having sex sound a little absurd to anyone these days?

  3. Jeremy Says:

    “Doesn’t the whole notion that we have police pretending to be gay so they can arrest gay people for their assumed intentions of having sex sound a little absurd to anyone these days?”

    mark snyder, ever watch Dateline NBC’s “To Catch a Predator?” It’s seems that the mass ignorant public in its extreme paranoia believe that our police should spend their time setting up elaborate sting operations to catch perverted 40 year old virgins trying to get laid by anything that has a mean temperature of 37.0 degrees celsius. Meaning they will screw anything with a hole.

    The point is this, is there bad perverted sickos roaming our streets looking for children? you betcha. Is there prostitutes willing to do any blow joe for a dime bag? Absolutely. Is there diseases and vices that go hand-in-hand with these felonious activities? Right again.

    The question is this: Do we want to live in a society where everything you do or everything you say is subject to arbitrary surveillance or persecution regardless if you are actually engaged in these activities or not? I would hope that most people would say no.

    What’s most interesting about this case though is that the people that advocate for these strict draconian “surveillance stings” if you will, are conservative Republicans running on a “tough on crime” agenda. Yet, here we have the law maker getting caught by his own laws, these laws wern’t meant for him of course, because he’s an upright, family orientated, christian conservative and most importantly, a Senator. Now we all know that Republican senators are god-fearing men, heterosexuals that only wish to instate the Holy Trio of politics. God-Family and Tax Breaks.

    Now, isn’t it a shame that Congressman Craig wasn’t caught on Dateline NBC’s show To Catch a Predator, where only the average schlep is dumb enough to get caught trying to shag the kiddies. So it is…it’s a little hard to feel bad for these guys that are off in public bathrooms trying to score a homosexual trick in bathroom stalls. And the most poetically just thing about it all is that it is these same conservative, anti-gay, homophobes that
    pass some of the most zealous anti-gay legislation, perhaps to escape any suspicion that someone might find out about Craigy’s lil’ secret. That the most ardent proponent of the Christian “ethics and family values” is looking to get sucked off before his 12 O’clock flight.

    If these Republicans must insist that the average everyday citizen must be held accountable for their illegal sex acts then perhaps they should live by their own ethos: Don’t do the crime if you can’t do the time.

  4. frank burns Says:

    Definitely should not have been arrested. The cop was “moving his foot up and down slowly” near the edge of his stall — just sitting there with his cute little boy’s face (I saw his picture) and asking for it. Craig took this bait discreetly. If the cop didn’t like it, just pull his foot away and be done with it. This is not soliciting, just flirting. Craig did not have sex in the bathroom, and maybe wnated just titllation and to exchange phone numbers. If flirting is now illegal, even in a public place, it is time to have our collective head examined.

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