Phil Hoskins wrote:
Why? why is the expectation of one person sufficient to incur criminal penalties on another? Seems to favor one person's expectations over another's and I don't seem to find that in either the US nor any state constitution...I see no reason to criminalize solicitation, wanted or unwanted, at least of any adult...Actual sexual activity, if in the presence of a person other than a police officer stationed there solely to observe the activity provides a more solid basis for criminal penalties, but just tapping one's feet and motiioning with hands should never be criminal.
Phil, you pose a very good and troubling question. Moreover, it appears you are correct. Even if everything in the police report is true, what Larry Craig did does not constitute a crime. There was no basis for arresting Larry Craig.
From another blog:
Minnesota LawProfessor Ted Sampsell-Jones (William Mitchell), who has far more knowledge than I of Minnesota criminal law, writes:
Minn. Stat. 617.23, the indecent exposure statute, covers lewd or lascivious conduct in a public place. Sex and masturbation count as lewd and lascivious acts. There is, however, some Minnesota case law suggesting that public restrooms aren't "public places" once you close the door to your stall. State v. Bryant, 177 N.W.2d 800, 803-04 (Minn. 1970).
Even if the completed act would be a crime, it's doubtful that merely asking for sex in the restroom would be a crime.
Minnesota, unlike some jurisdictions, does not have a general solicitation statute. Mere solicitation of a crime is not a crime. State v. Lowrie, 54 N.W.2d 265, 266 (Minn. 1952); State v. Johnson, 2005 Minn. App. Unpub. LEXIS 352 at *9. Minnesota does of course have an attempt statute, 609.17, but that requires a substantial step toward completion of the crime, plus the specific intent to commit the crime. I think it's possible but doubtful that Craig's acts would count as a substantial step, and it's also possible but doubtful that you could infer such a specific intent. Or rather — there's some inference there, but it's not strong enough to support guilt beyond a reasonable doubt.
Other sources I read online would support the fact that no actual crime occurred. It is probably most unfortunate for the former senator that he did not have the presence to muster the considerable resources at his disposal to make this easily go away. Likely terrified, and thinking or hoping it would get buried, he pled guilty to a misdemeanor count of disorderly conduct.
Phil is also apparently correct in that there is no legal basis for people being protected from solicitations for sex in public places. Legally, then, public washrooms present a great way to solicit new and different partners for anonymous sex. Foot tapping and hands under the stalls are pretty weak, and may cause confusion. The meaning may be lost, or misinterpretted. Online discussions I read related that more direct methods of solicitation are also not clearly illegal. These involve venues like locker rooms, showers, beaches, urinals, etc. The common denominator being places in which men are exposed or undressed as part of the intended purpose. Men soliciting for sex in these circumstances can push the envelope on what would otherwise constitute lewd behavior, which is usually illegal.
The caveat to this wholly legal dating game is that when the sex starts in a public place, then it becomes lewd behavior. And not even sex. Exposure of private body parts, and then, of course sexual acts in public (and sometimes in private)whether by one or more persons can be lewd behavior. There are a ton of legal definitions, as one migh expect.
The red flag that this whole Craig incident raises is police entrapment of gays cruising for sex. Solicitation for (public) lewd acts: not a crime. Public lewd acts: crime. The problem with the solicitation is where is it going? If one solicits anonymous strangers in a public bathroom in an airport, is he then going to fly home with them? No. The intent is to commit the act right then and there. Both consensual adult males having sex in a public bathroom. This is lewd behavior and criminal. The issue of entrapment, then, is that the vice cop will only lure his target into solicitation. While there may be intent to commit a lewd act, this is not a crime, at least in Minnesota.
