Toilet sex carries “expectation of privacy” says ACLU

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The American Civil Liberties Union yesterday filed court papers in support of US Senator Larry Craig’s fight to have his conviction for soliciting sex in an airport toilet overturned.

The ACLU brief cited a Minnesota Supreme Court ruling that people having sex in a closed toilet cubicle in a public toilet have an “expectation of privacy” and if the Senator was attempting to engage an undercover police officer for sex he was not acting illegally.

The Republican party Senator was arrested on June 11th by an undercover police officer in a Minneapolis airport men’s room, who said the Idaho politician had engaged in conduct “often used by persons communicating a desire to engage in sexual conduct.”

This included tapping his toes and placing his hand palm upwards under a toilet cubicle, both cruising signals.

Minutes later he was arrested for disorderly conduct.

Craig denied soliciting for sex, saying “I’m not gay. I don’t do these kinds of things,” according to an audio tape released by police.

He denied that he had used foot and hand gestures to signal interest in a sexual encounter.

Despite a pledge to resign, he later announced he would challenge his guilty plea and claimed that he admitted to the charge in a panic to avoid triggering a story about his sexuality in his hometown newspaper.

“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 said.

His lawyers last week lodged a 96-page brief with the Minnesota Court of Appeals explaining why they think the charges should be thrown out.

They argue that his actions fall short of the definition of disorderly conduct, and that the ‘signals’ were initiated by the arresting officer.

“First, disorderly conduct, by statutory definition, must affect ‘others.’

“It is not sufficient that a single person, in this case Sgt. Karsnia, be affected,” the lawyers brief said according to

“Sgt. Karsnia invited the alleged intrusion.”

Senator Craig has pledged to serve out the remainder of his Senate term, which ends in January 2009.

In September the ACLU argued that the government can arrest people for soliciting public sex only if it can show beyond doubt that the sex was to occur in public.

Solicitation for private sex, regardless if it occurs in a bar or a restroom, is protected speech under the First Amendment of the US Constitution.

When free speech rights come into play, police enforcement actions must be “carefully crafted” so that they don’t unnecessarily ensnare people who are engaging in constitutionally protected speech.

The secret sting operation used by the police to arrest Senator Craig was not “carefully crafted” to avoid ensnaring innocent speech, says the ACLU.

Alternatively, posting a sign that the restroom is being monitored is an effective means of deterring public sex without risking trampling on free speech rights and illegally trapping someone who might not intend to have sex in public in the first place.

In fact, many law enforcement agencies, including the Minneapolis Police Department and the US Department of Justice, recommend signs rather than secret sting operations as enforcement mechanisms.

“The real motive behind secret sting operations like the one that resulted in Senator Craig’s arrest is not to stop people from inappropriate activity,” said Anthony Romero, Executive Director of the ACLU.

“It is to make as many arrests as possible – arrests that sometimes unconstitutionally trap innocent people.”