In a court filing in support of a defendant, they make the following argument:
Sex is a constitutionally protected liberty interest. Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. The government does not have a constitutionally sufficient justification for making private sex 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.
I wonder if Larry Craig told them he doesn’t want their support?
Is there any such thing as private sex in a public bathroom? I think their argument is faulty.
The charge against Craig is based on the fact that the guy next to him (the undercover) had a reasonable expectation of privacy that Craig violated.
(edit)
From the AP article:
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.’’
One thing I never understood about unwelcome invitations to sex was how someone was supposed to know if the invitation was welcome or not until it was made.
Can you clear that up for me? It would be a big help.
“Is there any such thing as private sex in a public bathroom? I think their argument is faulty.”
The assumption behind the argument (regardless of whether or not one agrees with it) was that the sex itself wouldn’t be in a public restroom, only the proposition that led to it.
“One thing I never understood about unwelcome invitations to sex was how someone was supposed to know if the invitation was welcome or not until it was made.”
That’s a good question, and one that could also be applied to heterosexual as well as to homosexual invitations, and to invitations in a lot of places other than restrooms.
Legal arguments like this are the way our law refines definitions and limits. The arguments of both sides are valid ones that are put forward to enable the court to draw the lines. I don’t think either side is being ridiculous, it’s just the way it works.
isn’t “an unwelcome invitation to sex” pretty much the definition of sexual harassment? even if sex itself is legal?
-mike
I realize we’re getting off topic here, as the Craig case had nothing to do with sexual harassment, but:
“Unwelcome” is only one of a number of elements of sexual harassment. There also has to be a protected victim, usually an employee or a student. In other words, an unwelcome advance to someone on the street or in a bar is not likely unlawful sexual harassment since it occurred outside of and completely unrelated to the workplace or the school. In the workplace, unlawful sexual harassment has to be unsolicited and unwelcome sexual conduct where (1) submission to it (explicitly or implicitly) is a condition of employment; (2) submission or rejection is used as basis for an employment decision or a decision on benefits, services, programs, etc.; or (3) it has the potential to negatively affect an employee’s performance or create a hostile work environment.
In the hostile work environment case, the *unwelcome *and unsolicited conduct must also be reasonably offensive and must unreasonably interfere with their job performance or otherwise create an intimidating, hostile or offensive work environment.
By itself, a one time proposition is not sexual harassment, even if it occurs in the workplace.
Finally, while the conduct underlying sexual harassment might also be criminal, sexual harassment itself usually is a civil allegation.
One thing I never understood about unwelcome invitations to sex was how someone was supposed to know if the invitation was welcome or not until it was made.
Can you clear that up for me? It would be a big help.
I can only speak to workplace harassment, but despite what many believe, common sense does apply. Propositioning someone is not unlawful workplace sexual harassment. Repeatedly propositioning someone after having been rejected might be. In other words, there’s more to it than simply being unwelcome.
Let me get this straight (pun intended). They are contending that Craig was arrested because he was making a public proposition to go have sex in a private place?
If that is the case, he shouldn’t be prosecuted.
But I think that he was arrested because he made a proposition to have sex in the public bathroom. I don’t care what the genders of the parties involved are - I think sex in a public bathroom should be prosecuted. But maybe I’m a prude.
Whether or not two people having sex in a public bathroom have “an expectation” of privacy, I don’t think the sex carried out there is private, and I doubt there’s a constitutionally protected right to have it there.
In any event, why isn’t the ACLU concerned about the privacy of the undercover officer?
“But I think that he was arrested because he made a proposition to have sex in the public bathroom. I don’t care what the genders of the parties involved are - I think sex in a public bathroom should be prosecuted.”
If I remember correctly, he was arrested on the basis of body language of a purely symbolic, highly codified nature, and no words were spoken. It sounds to me (not that I know much about such things!) as if some kind of proposition was intended, but that it wasn’t conveyed whether the proposed act was to take place there or elsewhere. In my book, that’s a long way from actually carrying out the act in a public restroom, so I’d probably tend to agree with you that Craig’s actions shouldn’t have been prosecutable. OTOH, I can’t really take umbrage at the outcome, since Craig’s history makes it clear that he would have been a strong advocate for such prosecutions. I see what happened more as karma than as injustice.
so I’d probably tend to agree with you that Craig’s actions shouldn’t have been prosecutable. OTOH, I can’t really take umbrage at the outcome, since Craig’s history makes it clear that he would have been a strong advocate for such prosecutions. I see what happened more as karma than as injustice.
Bingo on all the above.