Grendel
01-16-2008, 06:42 PM
ST. PAUL, Minn. - In an effort to help Sen. Larry Craig, the American Civil Liberties Union is arguing that people who have sex in public bathrooms have an expectation of privacy.
Craig, of Idaho, is asking the Minnesota Court of Appeals to let him withdraw his guilty plea to disorderly conduct stemming from a bathroom sex sting at the Minneapolis airport.
The ACLU filed a brief Tuesday supporting Craig. It cited a Minnesota Supreme Court ruling 38 years ago that found that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."
That means the state cannot prove Craig was inviting an undercover officer to have sex in public, the ACLU wrote.
The Republican senator was arrested June 11 by an undercover officer who said Craig tapped his feet and swiped his hand under a stall divider in a way that signaled he wanted sex. Craig has denied that, saying his actions were misconstrued.
The ACLU argued that even if Craig was inviting the officer to have sex, his actions wouldn't be illegal.
"The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom," the ACLU wrote in its brief.
The ACLU also noted that Craig was originally charged with interference with privacy, which it said was an admission by the state that people in the bathroom stall expect privacy.
Craig at one point said he would resign but now says he will finish his term, which ends in January 2009.While I don't think having sex somewhere where children or someone with children could walk right in within mere feet of you is, in any way, appropriate, I have to take issue with the initial framing of the story as it makes it sound like the ACLU cooked this one up on their own, when, in fact, a rather specific--and relevant--precedent in the case law came from a decision rendered back in 1970. From the amicus brief (To view links or images in this forum your post count must be 5 or greater. You currently have 0 posts.):
"Sex is a constitutionally protected liberty interest. Griswold v. Connecticut, 381 U.S. 479 (1965); Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct., Hennepin County, May 15, 2001). Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. See Lawrence v. Texas, 539 U.S. 558, 578 (2003). The government does not have a constitutionally sufficient justification for making private sex a crime. Id. (“The State cannot . . . mak[e] . . . private sexual conduct a crime.”). It follows that an invitation to have private sex is constitutionally protected and may not be made a crime. This is so even where the proposition occurs in a public place, whether in a bar or in a restroom. ***See Pryor v. Municipal Court, 599 P.2d 636, 645-46 (Cal. 1979) (recognizing that public proposition of private sex may not be made a crime).
The Minnesota Supreme Court has already ruled that two men engaged in sexual activity in a department store restroom with the stall door closed had a reasonable expectation of privacy. They were, the Court held, therefore acting in a private, not a public place. State v. Bryant, 287 Minn. 205, 209-210 (1970) (conviction reversed).
Craig, of Idaho, is asking the Minnesota Court of Appeals to let him withdraw his guilty plea to disorderly conduct stemming from a bathroom sex sting at the Minneapolis airport.
The ACLU filed a brief Tuesday supporting Craig. It cited a Minnesota Supreme Court ruling 38 years ago that found that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."
That means the state cannot prove Craig was inviting an undercover officer to have sex in public, the ACLU wrote.
The Republican senator was arrested June 11 by an undercover officer who said Craig tapped his feet and swiped his hand under a stall divider in a way that signaled he wanted sex. Craig has denied that, saying his actions were misconstrued.
The ACLU argued that even if Craig was inviting the officer to have sex, his actions wouldn't be illegal.
"The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom," the ACLU wrote in its brief.
The ACLU also noted that Craig was originally charged with interference with privacy, which it said was an admission by the state that people in the bathroom stall expect privacy.
Craig at one point said he would resign but now says he will finish his term, which ends in January 2009.While I don't think having sex somewhere where children or someone with children could walk right in within mere feet of you is, in any way, appropriate, I have to take issue with the initial framing of the story as it makes it sound like the ACLU cooked this one up on their own, when, in fact, a rather specific--and relevant--precedent in the case law came from a decision rendered back in 1970. From the amicus brief (To view links or images in this forum your post count must be 5 or greater. You currently have 0 posts.):
"Sex is a constitutionally protected liberty interest. Griswold v. Connecticut, 381 U.S. 479 (1965); Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct., Hennepin County, May 15, 2001). Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. See Lawrence v. Texas, 539 U.S. 558, 578 (2003). The government does not have a constitutionally sufficient justification for making private sex a crime. Id. (“The State cannot . . . mak[e] . . . private sexual conduct a crime.”). It follows that an invitation to have private sex is constitutionally protected and may not be made a crime. This is so even where the proposition occurs in a public place, whether in a bar or in a restroom. ***See Pryor v. Municipal Court, 599 P.2d 636, 645-46 (Cal. 1979) (recognizing that public proposition of private sex may not be made a crime).
The Minnesota Supreme Court has already ruled that two men engaged in sexual activity in a department store restroom with the stall door closed had a reasonable expectation of privacy. They were, the Court held, therefore acting in a private, not a public place. State v. Bryant, 287 Minn. 205, 209-210 (1970) (conviction reversed).