Did Craig Plead Guilty Too Hastily? Case Raises Legal, Ethical Issues

Since news broke of U.S. Sen. Larry Craig's guilty plea to a June incident in a men's restroom, bloggers, lawyers and pundits have weighed in on the fact that five relatively innocuous actions alleged by police led to his arrest at the Minneapolis-St. Paul International Airport.

Even Craig, who resigned from the Senate under pressure from fellow Republicans, has indicated that he might stay in office while he seeks to overturn the guilty plea. His resignation was set for September 30.

According to the police report, Craig allegedly stared through the crack in an airport restroom stall, placed a bag at the front of his own stall next to the stall he peered into, tapped his foot, touched an officer's foot and put his fingers under the stall into which he had previously peered.

Jerry Burg is a Minneapolis attorney who has represented clients in situations similar to Craig's since 1992. "The police report on Craig is pretty similar to the reports on many of my clients. I'm always stunned at how similar these reports sound in court," he told Minnesota Monitor.

Because these signals are well known as expressions of sexual interest among men who seek sex with other men, and have been around even before gay men achieved some societal acceptance, police know them just as well. This year, Minnesota has seen several instances of police stings targeting this behavior, and men are being convicted on charges involving suspicious foot-tapping.

"Enforcement has appeared to increase in the last 12 months. It has escalated," said Burg. "The police often frame [the stings] in terms of there having been multiple complaints, and that's why they are there," he said. "But when the story hits the news, everyone seems to be surprised."

University of Minnesota law professor Dale Carpenter wrote extensively on this issue in the days following the Roll Call article that broke the story. "A reasonable person faced with Craig's alleged behavior would have moved his foot away and/or muttered a simple 'no thanks' or 'stop that,' which likely would have brought an end to it," Carpenter wrote. "A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn't happen. In fact, the officer tapped his own foot in response, indicating the interest was mutual."

Carpenter's point is one that many have made during the last two weeks since news of Craig's arrest and plea broke: People solicit other people for sex in Minnesota all the time, and it is not illegal to do so. Could Craig have fought the charges? And why did he offer a guilty plea?

Burg says that shame can be a powerful motivator. "Virtually every client has a high level of shame and they just want the case over quickly," he said, adding that many don't have the funds to challenge these cases.

"Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed," Carpenter wrote.

Indeed, Craig's lawyer Billy Martin agrees that embarrassment led to the guilty plea, and is at the heart of the case to overturn it. "The arrest of any citizen raises very serious constitutional questions, especially when that citizen says that he is innocent and pled guilty in an attempt to avoid public embarrassment," Martin said in a statement released Sunday.

The only evidence against Craig, who has represented Idaho since 1991, was a police report. "Police reports are merely evidence, not the truth. It is the officer's word against the accused," said Burg. Carpenter has a similar take: "Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer's version of events is correct."

Craig is only alleged to have attempted to solicit sex. No actual sex happened, but even if it did, Craig could have easily taken a partner to a legal, private place for sexual activity, much the way a man may take a consenting woman home from a nightclub after such a solicitation.

Carpenter references an analysis by Ted Sampsell-Jones of William Mitchell College of Law in St. Paul, who says that the facts of the case don't necessarily point to a crime committed. "Even if the completed act would be a crime, it's doubtful that merely asking for sex in the restroom would be a crime. ... I think it's possible but doubtful that Craig's acts would count as a substantial step, and it's also possible but doubtful that you could infer such a specific intent. Or rather - there's some inference there, but it's not strong enough to support guilt beyond a reasonable doubt."

Craig's situation has sparked considerable conversation, however. "If there is anything good that has come from this case, it's the dialogue that has occurred. Do we need to spend law enforcement resources on this?" said Burg.

Burg also says that many men who are arrested under these circumstances plead guilty because of embarrassment, and don't fight for their rights. Employers run background checks and find the police reports, which can lead to uncomfortable questions and even loss of employment.

In some cases, undercover police are exposing themselves and inviting such advances. When contact is made between the officer and the person "cruising," the target is arrested and sometimes charged with sexual assault despite the officer's invitation. Burg says some clients then end up in sex-offender treatment programs.

Like Craig, "These men are paying a high price after the courtroom," says Burg.

Perhaps Craig's example will be a service to other men caught in similar situations.