So, it looks like the legal wrangling associated with the Larry Craig in the airport bathroom case is coming to an end. Remember, that bit of news gone national making Minnesota look bad in 2008, aside from riots at the RNC, and possibly electing Stuart Smally to the Senate (still not final because we still can’t get enough people to take off their gloves and boots to properly finish the recount apparently, or some toes have frozen off (the forecasted low for tonight is 15 below) causing the numbers to shift, or something).
The one interesting part of the Larry Craig case (at least to me anyway), was the legal defense made by the ACLU was trying to defend him on the basis that his invitation for sex to the undercover police officer was protected as free speech. That, in and of itself is old news. But there’s one detail of the case in this article over at MinnPost of which I was unaware:
Finally, the ACLU maintains that Craig allegedly invited Karsnia to engage in conduct which is not, in itself, a crime. The brief states that if Craig’s invitation was to have sex in a restroom stall, then that conduct would be protected under State v. Bryant, a 1970 Minnesota Supreme Court decision which holds that “individuals who engage in sex in closed stalls in public restrooms have a reasonable expectation of privacy.”
Is it just me, or is that a really unusual Supreme Court case? Later in the article:
Also, attorneys for the state contend that Craig’s reach under the stall was not covered by the State v. Bryant case, since Craig’s body intruded into another stall, and was not confined to the one that he occupied, where he had a reasonable expectation of privacy under the Bryant decision.
Oral arguments in the State of Minnesota v. Larry Edwin Craig case will be heard at 9 a.m. today at the Minnesota Judicial Center.
(Author exercises great restraint in not making an “Oral arguments” crack, even though MinnPost put that in the last line of their article, which could kind of leave a bad taste in…, oh nevermind.) So, yes, there was actually a case in 1970 that went all the way to the Minnesota Supreme Court on how much privacy you can expect while having sex in a public restroom.
After a little digging, I found this rather lengthy article on sodomy laws, which gives the case more context:
The first non-unanimous sodomy decision by the Court was the 1970 case of State v. Bryant. A bitterly divided 4-3 decision overturned the conviction of a man arrested in a department store restroom. The store suspected that sexual relations were taking place in the restroom after the security supervisor, David Imire, discovered a glory hole cut between two stalls. Imire and a police officer then stationed themselves in the roof, looking down on the stalls, which led to the arrest of Bryant for making use of the glory hole. After noting other court decisions concerning the same issue, which led to the reversal of convictions for violations of privacy, Chief Justice Oscar Knutson, writing for the majority, stated that
once the store provided facilities of such a nature that the user was assured of privacy, it could not destroy that privacy by giving its consent to secret surveillance by police.
In dissent, Justice Robert Sheran, who resigned shortly after the decision was announced, stated that his disagreement consisted “only” of the fact that
persons who use places of this kind for illegal activities which subvert the object of the owner’s invitation should not be allowed to shield their perversions by appealing to the court’s proper concern for the rights of others not involved in the prosecution.
Law is such an odd thing. So, from what I can tell from all of that, according to Minnesota law, though it’s probably illegal to have sex in a public restroom (I assume, didn’t look that one up), you can legally expect privacy while doing so, so long as no parts of anyone involved leave the stall. Also, no one can spy on you to see if you are having sex in a public restroom, though I would assume that if the fact that that is taking place is apparent to anyone outside the stall, the police would probably have probable cause to investigate. No idea where all that would then fit in with indecent exposure laws if an officer opened the stall door (making a legally private space public), obscenity laws, or (god help us all) health codes.
I’d just like to reiterate, law is such a weird field.