Defending Sen. Larry Craig II

Before I get to the charge to which Craig actually pled guilty, I need to make an important distinction. What I am giving here is a legal analysis. Political factors always enter in in politics--which is no surprise. But I do want to make one point about homosexuality and American politics in 2007. I think that America has a frenzied fear of actual or even simulated male/male intimacy in our day. It is as if some collective story from our abyssal past comes and bites us every time we hear the word "gay" or imagine that two men might exchange touches or caring glances to each other, much less more intimate conduct. Why are we so afraid of "gay" conduct in our culture? Why do we feel the need to dishonor, abuse, and exclude those who are either gay or gay-curious? I think one of the great ironies in life is that the states which are most rabidly anti-gay, as Idaho no doubt is, may have the privilege of having a gay senior Senator. Sen. Larry Craig has the second-longest federal elected political tenure of any politician in the history of the State of Idaho. And, he may indeed be gay. If you hate poeple enough, or groups of people, you wil end up having them across the table from you at Thanksgiving dinner. Comedian Chris Rock pointed this out in one of his more lucid and apt observations.

One more point. Senator Craig may indeed have done something stupid, but unless his conduct fits the language of the statute, he hasn't committed a crime. Conduct isn't a crime because someone says, "Well, that ought to be a crime." It has to fit statutory language.

Now let's move to disorderly conduct, the misdemeanor (and thus still a crime) to which Sen. Craig pled guilty. According to Minnesota law, we have the following under 609.72.

"1. Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
(1) Engages in brawling or fighting; or
(2) Disturbs an assembly or meeting, not unlawful in its character; or
(3) Engages 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.
A person does not violate this section if the person's disorderly conduct was caused by an epileptic seizure."

Now there is langauge here which can potentially cause problems for Sen. Craig. Indeed, if there wasn't, there would have been abuse of discretion by the charging officers. But first let's see what his conduct was not. We can immediately eliminate the epileptic seizure langauge at the end. No evidence of that excusing his conduct. He didn't engage in brawling or fighting (1). Indeed, Senator Craig, unlike Sen. Reid of Nevada, doesn't look like the brawling type. He didn't disturb an assembly or meeting that was lawfully gathered (2). Thus, his crime must have been in (3). Well, he may have engaged in "offensive" or "obscene" or "abusive" conduct that was reasonably intended to "alarm," "anger," or "cause resentment" in another, but let's see which one might apply. But first we have to ask which act or acts constituted the disorderly conduct. Did reaching his fingers under the stall divider constitute it? Did placing his foot within the confines of the officer's stall constitute it?

If the charge had been on a trespass theory (a word I introduced in the previous essay), one might argue that he was in another's legitimate private space (the stall), and thus one was trespassing illegally on a person with a legitimate expectation of privacy. But there is nothing mentioned about trespass in the charging instrument. So, it is either Sen. Craig's alleged scraping his fingers under the stall divider or moving his foot into the space of the officer that constituted the disorderly conduct.

Looking at the language of the statute, then, it would have to be that Craig's putting of his foot in the other stall/touching the stall divider was an "offensive" action that reasonably caused either "alarm," "anger" or "resentment" in others. But one question has to be posed. The intention of the statute is to protect people who have legitimate expectations of privacy from being disturbed. The language of the statute only applies if the person reasonably is alarmed, angered or feeling resentment. In other words, to use legal jargon, the statute requires an objective rather than an subjective standard.

What This All Means

What this means is that if a reasonable person would have felt anger, alarm or resentment at Senator Craig's conduct, then he would have violated the statute. And, a jury would have to conclude that such a reasonable person would have felt it beyond a reasonable doubt. You might call Senator Craig's conduct crude or suggestive, an example of solicitation for sex, but I think you would be hard pressed to say that it constitutes disorderly conduct under the statute.

Let's take, for purposes of comparison, a guy "hitting on" a girl for a date. Ever met a guy who might engage in some noisy conduct towards a woman that might tend to cause some anger or resentment in her? My, this sounds like the run of the mill way that many guys approach women. What do we do? Arrest all the guys for going after women? Guys who do this to women, which in general is conduct far more severe than Senator Craig's conduct, are never arrested.

Conclusion

Well, maybe we should start having sting operations at high schools and colleges across the country. We could have pretty girls/young women wear revealing clothing and give the "look" to passing guys. My, by the end of the day we could have 20% of the university in jail. Married men would be in jail. Marriages would break up. Social disintegration would ensue. But, guess what? The guys would be more guilty of disorderly conduct than was Senator Craig in the MN airport.

Let's leave the guy alone. Then he can begin really to deal with the important question--which is how to explain to himself the nature of his sexuality. It is a very important question, even for United States Senators.

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