NYPD in the Bathroom - Exposure and Lewdness
A public restroom is almost an oxymoron. How can a place reserved for our most
private moments be translated to a
public facility? While there are certainly those who would take advantage of
the vulnerabilities present in a private place in a public setting, there
also exists an inherent potential for mistakes, misunderstandings, and
Restroom rituals are among some of our most private and personal, so to
examine them in the context of public communication is a flawed approach.
For example, the Larry Craig scandal in 2007 involved now former Republican
State Senator from Idaho, Larry Craig. Mr. Craig was in the bathroom at
the Minneapolis-St. Paul International Airport when he engaged in some
behavior that was interpreted by a police officer as an invitation to
engage in anonymous sex in or through the stalls.
At first glance, this presentation of the facts paints a sordid and reprehensible
scenario. However, closer examination of the sequence of events leads
to more questions than answers. The arresting office in Mr. Craig’s
case stated that he observed Mr. Craig tapping and moving his right foot
in the stall. Mr. Craig then swiped his hand around the bottom of the
stall. These gestures seem innocuous on their own, but the arresting officer
claimed that these behaviors were known signals that a person used to
initiate anonymous sex with a stranger in an adjacent stall.
Admittedly, it is suspicious that Mr. Craig performed any of these actions
in a public restroom that was under investigation for complaints of sexual
activity. But surely these actions alone would not otherwise be unambiguously
indicative of anything more than simple restroom quirks. It is not unheard
of that an innocent man might have tapped his foot on a bathroom floor
without any untoward intent. It is not so outlandish to think that one
might mistakenly swipe a stall while reach for toilet paper either. It
is entirely possible that Mr. Craig knew what he was doing, particularly
given the reputation of the bathroom in which he was arrested, but such
is not the case in every arrest. It is also worth noting that Mr. Craig
later plead guilty.
Herein lies the most dangerous result of laws defining exposure, public
lewdness, or any of the related charges. Whether or not an individual
is convicted, the stigma associated with a mere arrest for these kind
of offenses is enough to convict a person in the court of public opinion.
Mr. Craig did not run for reelection in 2008 and all but ended his career
after the scandal. In fact, the average person even vaguely familiar with
the case would not likely be able to recall anything about him other than
the fact that he was arrested for some sort of sex-related offense in
a public restroom, even though the statute under which he was convicted
was not sex-related.
The risk of running afoul of a vaguely defined, broadly enforceable statute
dealing with crimes related to exposure seems like it would increase greatly
in a high-traffic public restroom. Consider a place like Grand Central
or Penn Station, which serve anywhere from 750,000 to more than a million
commuters in a single day. Inevitably, the facilities are constantly teeming
with people coming and going, each engaging in their own personal and
private restroom rituals. More eyes, more ears, more shuffling feet, and
more swiping hands in every direction all exponentially increase the risk
of mistakenly conveyed signals. This heightened scrutiny suggests that
all it would take is one misperceived gesture to put a person’s
entire career, family, friendships, and future at risk. In this way, police
error or a moment of having a consensual interaction can destroy not only
an individual’s reputation, but entire life.