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RSS icon Comments on Public Sex Environments Really Private, Says ACLU


But it doesn't mean you WANT to get caught - especially by an officer of the law. Or do they? Hmmmmmmm.....

Posted by rg | January 16, 2008 9:44 AM

Feit already linked this.

Posted by Karen | January 16, 2008 9:48 AM

Tippytoe sounds bette to me...

Posted by franknbeans | January 16, 2008 9:49 AM

I know what Fox News is covering tonight..... LOL!! Bill O'Reily is going to shit himself all over the place.

Posted by Cato the Younger Younger | January 16, 2008 9:50 AM

I'm not one to ACLU bash, but I think the rational rule would be that your stall's privacy ends where someone else's stall begins--i.e., reaching under and beckoning to someone else ain't "private".

Posted by NapoleonXIV | January 16, 2008 9:51 AM

Not to go too far afield with this, but I always find questions of where and when one has "a reasonable expectation of privacy" really interesting. Because I actually do think one has a reasonable expectation of a certain amount of privacy in a toilet stall -- that's the whole entire point of a stall. It's a limited privacy screen. So, for example, someone filming you in a toilet stall would be violating your privacy. That makes sense to me.

But then the courts have decided that the cops don't need a warrant to listen to cordless phone transmissions, because someone using a cordless phone doesn't have a reasonable expectation of privacy. Which totally blows my mind.

Posted by Judah | January 16, 2008 9:53 AM

99% of the time, the ACLU is a rational organization. But that 1% of crazy is really crazy.

Posted by Matthew | January 16, 2008 9:53 AM

It's silly to make a blanket statement about why somebody finds a certain kind of sex hot. Maybe most people who engage in public sex want the thrill of the risk. Maybe some just have nowhere else to go, so they do it in spite of the risk, rather than because of it.

Posted by twee | January 16, 2008 9:57 AM

@6-They need a warrant for the new cordless phones. That rule was only true with the old ones, which came with warnings. Those conversations were picked up all the time by the phone users' neighbors and random people, so the court decided users of the old cordless phone had no reasonable expectation of privacy.

Posted by Sandy | January 16, 2008 10:03 AM

And yet, Matthew, it's that other 99 percent of the time we're really glad they're around.

No laws can usurp my Rights and my Freedoms, no matter how many executive rulings there may be, just as no law by Congress may usurp a Senate-approved International Treaty like the Geneva Convention with its protections against tortures like waterboarding.

Posted by Will in Seattle | January 16, 2008 10:08 AM

Hmm... Am I the only one who noticed Schmader's hate mail complete with the sender's email addy posted just disappeared? Glad I caught it's ephemeral appearance.

Posted by greendyke | January 16, 2008 10:14 AM

Poll. POLL!!

Posted by Mr. Poe | January 16, 2008 10:14 AM

I don't think someone accidentally seeing anything is the real issue.

While one might expect a certain level of privacy while having sex in public restroom, what about the privacy of the guy who just wants to take a shit without getting hit on?

Posted by monkey | January 16, 2008 10:14 AM
just as no law by Congress may usurp a Senate-approved International Treaty like the Geneva Convention with its protections against tortures like waterboarding

Actually, that's not true. The following is excerpted from a book by Telford Taylor, former chief counsel for the Nuremberg Tribunal:

Issues such as those just discussed can be determined largely within the framework of the United States domestic law, but of course that is not true of the so-called "Nuremberg defense," which rests on over-riding principles of international law and treaties. In another recent case, wherein a draft registrant was convicted of failing to report for induction, the defendant unsuccessfully appealed on the ground that the war is illegal under the London Charter establishing the Nuremberg Tribunal. In this case, too, the Supreme Court declined to review the case, with Justice Douglas the lone dissenter. Supposing that the court had taken the case, what "law" could it have looked to as the basis of decision? On this point, the Supreme Court and all other American courts are governed by the so-called "supremacy clause" in Article VI of the Constitution, which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.

For the present purposes, the most significant thing about this clause is that international law, except as embodied in treaties to which we are party, is not part of the "supreme law of the land." The second and almost equally important point is that treaties are not accorded any higher dignity than the "laws"-- that is, the statutes enacted by Congress. Treaties and statutes stand on an equal footing, and it has long been settled that in the event of conflict or inconsistency between a treaty and a statute, whichever is of later date prevails.

So, basically, Congress can override a treaty with a statute. Statutes legalizing torture are unconstitutional because they violate the Eighth Amendment, but statutes can and do supersede ratified treaties.

Posted by Judah | January 16, 2008 10:19 AM

the ACLU is just pointing out that there already is a court ruling in Minnesota basically allowing sex in a bathroom stall. they didn't INVENT the argument. the Minnesota Supreme Court did.

i suppose its the soliciting that is the crime...

Posted by max solomon | January 16, 2008 10:19 AM

i just wish they'd pick their fights a little more wisely. c'mon, they don't have unlimited resources. there are plenty of good cases to take on. this one just doesn't rate. for instance, of all the gay and lesbian rights they could be fighting for...the right to have sex in public toilets!?

Posted by ellarosa | January 16, 2008 10:19 AM

Oops. Missed a close tag there.

Posted by Judah | January 16, 2008 10:20 AM

If an admin happens to see this, could you just close the blockquote tag at the end of the first paragraph?

Not that anyone will read all that text anyway.

Posted by Judah | January 16, 2008 10:22 AM

I will. You members only jacket-wearin’ bitch.

Posted by Mr. Poe | January 16, 2008 10:25 AM

didnt larry craig violate the privacy of a public restroom stall by putting his hands underneath it?

Posted by Bellevue Ave | January 16, 2008 10:25 AM

@20 - You raise a good point - the real issue the ACLU should be dealing with in the Craig case is free speech, not privacy.

Gesturing under a door is as much speech as saying "hey, can you pass over some TP" or "gee, I'd really like to suck your cock". The question isn't "is there an expectation of privacy in a toilet stall" (yep - unless you invite "guests" to join you), it's "am I allowed to proposition strangers" (yep again, imho).

Posted by Providence | January 16, 2008 10:49 AM

Nicely said, max solomon. ACLU lawyers are pointing out contradictory precedent, is all. And this argument is one of three they make. Public-interest lawyers usually need to throw it all up against the wall and hope something sticks.

Favorite line from the brief is from the section saying Craig's solicitation is protected as free speech:
"the invitation to have lawful sex may not be made a crime."
News to some.

I also love that their brief--describing speech protected by precedent--manages to include the phrase "fuck the draft."

Posted by tomasyalba | January 16, 2008 10:53 AM

@14 - wrong.

Read. The. US. Constitution.

Now, get your mitts off my RIGHTS.

Posted by Will in Seattle | January 16, 2008 11:02 AM

This is really dumb.

People can choose not to have sex in a bathroom stall. I, however, can't really choose to not have to pee. And I'd rather not do it with people having sex next to me. I don't think that's unreasonable or prudish.

Posted by Lauren | January 16, 2008 11:10 AM
@14 - wrong.

So... I cited a credible source, quoted it, and presented a conclusion based on those materials.

If you could -- I don't know -- do any of that, I'd be interested in your perspective. But, see, you didn't. So I'm forced to assume that you're talking out of your ass.

Posted by Judah | January 16, 2008 11:15 AM

this is a great battle to fight. i see many of these police sting actions going too far. the topless women sting, for instance. they are catching too many harmless people, even entrapping some who are innocent.

this case is a great place to start because there already exists a law in minnisota that would seem to allow criag's behavior.

let's face it, many of the sex laws that are enforced are done so because of a puritanical belief system that is imposed on us. this system really has no place in modern america.

Posted by infrequent | January 16, 2008 11:18 AM

@ 24: Craig did not have any sex, much to his chagrin, I'm sure... He almost certainly would have, but he didn't. It would be a different story if some filthy pig knocked the door down and caught Craig with a big fat dick in his mouth.

The expectation of privacy arguement is debatable. I (ahem) know someone that got busted smoking weed in the woods during a camping trip, and tried the expectation of privacy arguement because his girlfriend was in the woods peeing. Lawyer said it won't fly because there is no expectation of priivacy in the woods, regardless if your peeing of chiefing.

Posted by Mike in MO | January 16, 2008 11:40 AM

soliciting for sex illegal??? huh - there would be millions of people in prison

the federal repeal of the sodomy laws says that gay men may solicit for sex, period

Posted by JOHN IN SLC | January 16, 2008 12:03 PM

Look, you can argue your point, but until you forcibly alter the body of law, it doesn't matter.

Rights aren't subject to alteration by Presidential proclamations.

Now, go have sex with yourself in a public bathroom while I sell the video on eBay to GOP pervs, ok?

Posted by Will in Seattle | January 16, 2008 12:14 PM

Wow, Josh got that one wrong. Or rather that quote is out of context.

As a member of the ACLU, I was super pissed when they told me they where filing a brief in his defense. But then I read their reasoning.

What Josh has is the build up that sex is private is protected. What the ACLU isn't arguing is that the rest room is a private place.

What the ACLU _is_ arguing (which you have to read the whole brief to get), is that Craig is free to solicit private sex. That the solicitation was observed, but they cannot prove he was going to have sex in the rest room. Basically, they are arguing that Craig may have taken his pickup back to a hotel room or other private place.

The ACLU is _not_ arguing that public bathrooms are private places. They are not saying that people should be able to have sex in them. They just don't want people to be nailed to the wall because they _may_ have done a crime.

If the cops had waited until Craig's dong was in the open, then the ACLU would not be filing its brief.

Posted by Just Some Guy | January 16, 2008 12:37 PM

Not that I think it should be, but we still have a sodomy law on the books here in MN.

609.293 SODOMY.
Subdivision 1. Definition. "Sodomy" means carnally knowing any person by the anus or
by or with the mouth.
Subd. 2.[Repealed, 1977 c 130 s 10]
Subd. 3.[Repealed, 1977 c 130 s 10]
Subd. 4.[Repealed, 1977 c 130 s 10]
Subd. 5. Consensual acts. Whoever, in cases not coming within the provisions of sections
609.342 or 609.344, voluntarily engages in or submits to an act of sodomy with another may
be sentenced to imprisonment for not more than one year or to payment of a fine of not more
than $3,000, or both.

And this one...

When any man and single woman have sexual intercourse with each other, each is guilty of
fornication, which is a misdemeanor.
History: 1967 c 507 s 11; 1971 c 23 s 43

This one has some interesting limitations...

609.36 ADULTERY.
Subdivision 1. Acts constituting. When a married woman has sexual intercourse with a man
other than her husband, whether married or not, both are guilty of adultery and may be sentenced to
imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
Subd. 2. Limitations. No prosecution shall be commenced under this section except on
complaint of the husband or the wife, except when such husband or wife is insane, nor after
one year from the commission of the offense.
Subd. 3. Defense. It is a defense to violation of this section if the marital status of the woman
was not known to the defendant at the time of the act of adultery.
History: 1963 c 753 art 1 s 609.36; 1984 c 628 art 3 s 11

So, unless he thought that the person in the other stall was his wife, or was not intending either party to use their mouths, he was attempting to conspire to commit a crime.

(I personally think that all 3 of these should be repealed.)

Posted by not a lawyer | January 16, 2008 6:54 PM

20 is right. Craig violated the cop's reasonable expectation of privacy by sticking his hand into the stall. Now I'm wondering: Are people OK with couples meeting outside the shitter but then having sex in the stall next to them?

Posted by no tap toe, no mo' | January 17, 2008 2:17 PM

20 is right. Craig violated the cop's reasonable expectation of privacy by sticking his hand into the stall. Now I'm wondering: Are people OK with couples meeting outside the shitter but then having sex in the stall next to them?

Posted by no tap toe, no mo' | January 17, 2008 5:34 PM

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