The Potty Police and Other Excesses - Part II

There are some activities of which I disapprove, perhaps even offend me. Should the government devote limited resources to put the offenders in jail because of my disapproval?

I usually am considered by others as a liberal and, when it comes to social policies and programs to protect and aid those of us who are in need, the young, the infirm and the elderly, I want the federal, state and local governments to take an active role. I am, however, a libertarian when government seeks to take an overly active role in regulating private conduct by adults.

In the recent, and on-going, situation involving Senator Larry Craig's arrest and subsequent plea to charges of disorderly conduct and interference with [the police officer's] expectation of privacy, there is a real question of whether Senator had broken the law at all. I discussed this in an earlier post.

There is a larger issue involved.

I suggest that the real issue involves why we devote scarce resources to attack private consensual conduct between adults. The Supreme Court in Lawrence v Texas (2003) held that private, consensual sexual behavior between (or among) competent adults, in that case sodomy, was not subject to criminal sanction by any state. Note the qualifiers: private, consensual, adult. The Court recognized that public behavior could be prohibited if such behavior was contrary to public morals.

Taking Senator Craig's situation and I intentionally omit any consideration of hypocrisy or his prior - and continuing -- unsympathetic positions toward homosexual behavior or belief; I do not believe his conduct, his actions, would constitute public "disorderly conduct" as defined by the applicable statute. The law Senator Craig is alleged to have been violated punishes Disorderly Conduct:

"Whoever does any of the following in a public or private place, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others. . .(3) Engages inoffensive, obscene, abusive, boisterous, or noisy conduct..."

Nothing that I have read indicates any assertion that the Senator was engaged in conduct that could remotely be considered "offensive, obscene, abusive, boisterous or noisy." If he had chosen to direct his attention to someone other than an undercover police officer, Senator Craig's behavior might have escalated to conduct reasonably deemed "disorderly" but we will never know.

But that's enough about the good Senator from Idaho. He has had more than his fifteen minutes of fame.

Should the government devote the time and resources regulating private conduct between consenting adults? (In Senator Craig's case, there had been no sexual or improper behavior in the public restroom and no clear showing that such activity was solicited or anticipated by the Senator. Perhaps if the police officer had not been so anxious to make an arrest solicitation might have been made but, as in so many of these cases, the intent is not to curb anti-social behavior but to harvest a large number of arrests.)

Suppose it is determined that overt sexual activity in public is a bad thing, how should it be prevented? The answer, generally applicable to any regulation of personal behavior, is to employ the least invasive and intrusive method possible. Conservatives, who believe in fiscal responsibility and restraint, should have no objection to this approach. If solicitation in public bathrooms is to be dissuaded, then most studies have established that posting "no loitering" signs coupled with periodic checks by officers works just as well as having an officer sit on a toilet for his shift in the hopes that a solicitation will be made. Both the United States Department of Justice and many police agencies, including the Minneapolis police department, which does not patrol the airport, concur that "sting" operations are expensive and not cost effective.

Law enforcement agencies that use undercover stings are reluctant to discuss how many officers are assigned to such operations or how much money is spent.

A spokeswoman for the Minneapolis Airports Commission said the airport police -- who have arrested 41 people since May in public indecency cases - could not discuss resources devoted to bathroom stings because providing such information "could compromise their ability to perform their duties."

In West Hollywood, Calif., a city with one of the nation's largest concentrations of gay men and lesbians, the Los Angeles County Sheriff's Department agreed to stop conducting undercover stings after complaints from residents and activists.

"You've got a better use of your time and police resources," said Mayor John J. Duran.

Lt. Amelia Huffman, a spokeswoman for the Minneapolis Police Department - which does not patrol the airport - agreed.

"The cost benefit doesn't play out," Huffman said. "These are misdemeanor crimes, by and large. While they are certainly troubling, and we want to be responsive to complaints, investing a lot in decoy operations just doesn't make sense."

Hillsborough County, Florida, has a fiscal crisis; many long established services enjoyed by the public are to be shut down, library hours are reduced; yet we still have money to enforce rules against lap dancing and laws mandating a space between performer and patron.

Speaking about strippers and their patrons, a few years ago the City of San Antonio passed a law requiring strippers to wear an ID while working so that police could tell who the employees at clubs were. The quick and easy answer was to locate the naked women, but that's another story.

There are many, many acts that should be prohibited by the criminal law. By the same token, private behavior between adults in a place where offended people do not have to be exposed should not be made criminal. Back to the potty situation, at worst, assuming the signals claimed by the police officer were indicative of a request for sexual conduct, which might have been consummated elsewhere and in private, as George Will opined, the Senator's request or invitation was the same as virtually most initial conversations in a singles' bar or cocktail lounge!

It's none of the government's business. Not until, at least, all of the highways are free of potholes, the bridges are safe, children are provided the best education possible, the elderly are safe and protected and all crimes against citizens are curtailed.