Date: Fri, 5 Jan 1996 09:13:58 -0600 From: "Richard D. Mohr" ________________________________________________________________________ Parks, Privacy, and the Police by Richard D. Mohr (January 1996) *To Serve and Protect -- And Arrest* This past summer, for the first time in anyone's memory, police arrested gay men cruising for sex under Provincetown's popularly dubbed "Dick Dock" pier. Caught up in the police's zeal, _Provincetown Magazine_ published the names of those arrested. A glance at gay regional newspapers strongly suggests that this past summer witnessed a marked upsurge in the number of gay men busted all across the country for trying to have _plein air_ sex. The _Baltimore Alternative_ reports "seventeen men have been arrested in the Loch Raven Watershed area in two undercover operations that appear to signal a crackdown on gay cruising in the public parks of Baltimore County."(July 1995, p. 8). In its next issue, the paper ran an op-ed by a reformed park cruiser who now condemns sex in parks because it is "asking for trouble" and represents a failure of "gay men to take responsibility for our own actions, particularly when we are out in public." Shades of Hunter Madsen and Bruce Bawer haunt in these words. The _Front Page_ of Raleigh, NC reports arrests made in Oak Hollow Overlook Park by loitering male vice detectives. The lieutenant in charge of the operation says that gay "behavior, lifestyle choices aside, does not befit a family park," though he added, "many of the offenders were married men" (July 14, 1995, p. 11). The _News Telegraph_ of Kansas City reports that over the summer "a total of 61 men have been arrested at Gage Park" in Topeka for solicitation: "Some men have been sentenced to jail time, as few as five days, as many as 179" (September 8, 1995, p. 9). _New Voice of Nebraska_ reports arrests in Omaha and Lincoln parks. In Lincoln, the police have successfully enlisted local gay activists to chastise gay men for having sex in Wilderness, Mndan, and Pioneers Parks, where the police threaten to make "general sweeps" if gay men don't shape up: "Captain Beggs asked for the community's cooperation to abide by the city codes and abstain from sexual contact in any public place. He did acknowledge that if the complaints continue, he will have no choice but to take other action." In response to this threat, the newspaper's editor, Sharon Van Butsel, responded: "I would like to personally express my gratitude to Captain Deggs for his openness and willingness to 'play fair' with the gay community. We have been reminded of the consequences of our actions, it is up to us to heed the warning and monitor our own behavior" (July 1995, p. 16). It is hard not to hear in these accommodations the timbre and refrains of the Nazis' Jewish Councils. *Sex and the Gay Establishment* More generally, gay leaders have tended to be so timid and embarrassed when it comes to discussing even currently _legal_ gay sex, that it never crosses their minds to call for rethinking the nature and legal status of "public" sex. Former head of NGLTF, Torie Osborn is all too typical: "Gay liberation -- contrary to queer pop mythology, which equates it with sexual freedom -- used to share with the women's liberation movement a broad social vision of transformed human relationships." But currently (she continues) "the idea of sex as salvation and as self,...dominates gay male -- and now young lesbian -- culture." Such sex (she winds up) "holds no promise for real change; it is consumeristic and ultimately hollow" (_Advocate_, Sept. 6, 1994, p. 80). Thank you, Torie. And gay academics, who one might think well-positioned to help out here, have added systematic indifference to the mewling of establishment activists. Under the thrall of postmodern trends, gay academics are only interested in how society conceptually arranges its sexual understandings and categories; these academics are not interested in actual sexual behavior. They are interested only in "sexuality," not in "sex." *Pseudo-Liberal Responses* Liberals haven't done much better. To date, the standard liberal response to police sweeps and entrapments of gay men has merely been the defensive claim that such actions are not an efficient use of scarce police resources. The police, that is, should instead be spending their precious time tracking rapists, robbers, and bank presidents who embezzle from widows and orphans. Sometimes this defensive position is enhanced by a second one which holds that in a highly homophobic culture like ours, the societal recriminations to such an arrest (like losing one's job and being prompted to suicide) are so likely to be disproportionate to the legal penalties of arrest that police should err on the side of caution in enforcing public indecency laws against gays. Even when combined, these feebly pragmatic postures remain committed to the view that in an ideal society which has overcome homophobia and can afford lots of police, every bush-side blow job would still properly lead to two arrests. Is there a principled argument that can be mounted against police arrests of men having sex on the gay turf of parks, piers, sand dunes, tearooms, and backrooms of leather bars? Yes, though the argument may sound a bit paradoxical. I will argue that most of what is called "public sex" -- even by gays -- is in fact private behavior which for social and legal purposes should be considered protected by privacy rights. The argument turns on understanding distinctive but frequently overlooked aspects of privacy and sex. *Something about Privacy* Feminists of the 1970s were right when they asserted, chiefly in the context of marital rape reform, that four-walls do not a privacy make. That some activity, like bomb production or homicide, occurs behind four-walls does not make the activity private, does not warrant its protection by privacy rights. True, if the four-walls are those of a home, there are procedural rights, rights of due process, that govern the ways in which the activity may be investigated: in order for the police to search for domestic bomb productio, they will need a search warrant issued only upon a finding of probable cause. But these procedural rights are not substantive privacy rights. Bomb production itself properly remains illegal. This state of moral and legal affairs, however, means either that substantive privacy rights do not exist, as some Left-leaning feminists have gone on to hold, or (more sensibly) that substantive privacy rights have a functional rather than a geographical or spatial foundation, as we might well expect from viewing abortion as protected by a substantive privacy right. This privacy right follows the woman across various terrains, through public spaces, and in and out of many rooms. The nature of the activity rather than its place is what makes it private. More generally, privacy is not enforced secrecy. For example, who you marry is a private matter, but it is hardly ever a secret matter. Indeed for a common law marriage to count as a legal marriage, the couple must hold forth their relationship openly to the general public. Secrecy voids the marriage. And so, we need to abandon the idea that in order for sex to be considered private, it must be hidden away behind four walls. It is not geography or mere physical enclosure that makes sex private. *Something about Sex* An examination of sexual behavior shows that most public sex (where "public" is understood geographically) is in fact private behavior (when privacy is viewed functionally). To sloganize: consent is the mark of the private in the realm of the sexual. Sexual behavior is what I call world-excluding. Sexual arousal and activity, like the activities of reading a poem or praying alone, propel away from mind and perception the ordinary world, the everyday workaday world of public places, public function, and public observation. First, during sex our perception of both space, especially visual distance, and time, especially clock-governed events, fade way from consciousness. Second, social relations shift in erotic reality. Public roles fade away and one becomes focused only upon those who potentially jibe with one's tastes, the particularities of one's erotic choices. Even the most "impersonal" or 'anonymous' sexual encounters are intimate in this way -- rarely does a name arouse. Such encounters are not marked, in the way commercial transactions are, by mere functioning in accordance with social or economic roles. Third, in the process of sexual arousal, one becomes increasingly incarnate, submerged in, even identified with, the flesh. In sexual disengagement from day-to-day circumstances, the body ceases to be merely a coathanger for personality and assumes an independent life of its own. Finally, in sexual arousal, the everyday world of will and deeds falls away. Sexual arousal must happen to one. It is a passion, not an action, project, or deed. It can occur only in situations where one is not observing one's progress and judging how one is doing. One has to be lost in sex for it to work upon one. For all these reasons, sex is inherently private. The sex act creates its own inter-personal sanctuary which in turn is necessary for its success. The whole process and nature of sex is interrupted and destroyed if penetrated by the glance of an intruder -- unless the glance itself becomes incorporated into the sexual encounter. But otherwise the intrusion is as disruptive to sex as the telephone ringing, which brings crashing in its train the everyday world of duration and space, function and duty, will and action, geography and place. *Privacy, Numbers, and Place* To observe sex but not participate in it (even as an aroused and arousing voyeur) is to violate the sexual act. Those present at a sexual encounter are either part of it or an intrusion into it; there are no neutral observers, a public at large. There is no such thing as casual observation of people fucking. As a result, though, if all members present at a sexual encounter are there by mutual consent, it is the rest of the world that is excluded by the sexual nature of the encounter. Any moral theory that protects privacy as sanctuary and as repose from the world must protect sexual activity. But notice that there is nothing magical here about the number of participants in a sexual encounter being two and nothing magical about enclosing walls rather than park shrubbery being the site of the private act. The act would be equally world-excluding if it occurred on an open field so long as everyone there was there consensually for sex. Nothing about the nature of sexual encounters requires that the number of persons engaging in private sexual acts be limited by numbers or geography. The traditional and sometimes legally enforced belief that two participants at most constitute a private sexual encounter -- that three or more people automatically make sex a public act -- is a displaced vestige of the view that sex is only for reproduction: since humans have litters of but one, only two can effect procreation. In the late 1970s, Ontario police, even in the face of national consenting adult laws, applied provincial bawdyhouse statutes to private dwellings where the allegedly publicity- producing magic number three was achieved only by counting the members of two different pairings on two different nights. While most people would find this absurd, many people -- including Diane Feinstein when mayor of San Francisco -- find orgy rooms at bathhouses and backrooms in bars not to be private. This view is wrong. For if the participants are all consenting to be there with each other for the possibility of sex polymorphic, then they fulfill the criterion of the private in the realm of the sexual. If, as is the case, gay cruising zones of parks at night have as their habitues only gay cruisers, police cruisers, and queerbCopley Square, sex is both functionally and geographically public. *Signs of the Sexual Times* _Frontiers_ out of Los Angele reports that earlier this year in Brighton England, city workers were ordered to stop chopping down shrubs at Duke's Mound when the city's Environmental Services Department learned that men used the location for sex and had been doing so for at least fifty years (February 24, 1995, p. 25). On this side of the Atlantic, the National Park Service puts up signs around some of Florida's nude beeches advising the novice what to expect by proceeding. The City of Chicago permits bars to show fuck films, but requires that the video screens not be the first thing one sees when one walks through the door. These are all ways in which government can enhance sexual privacy by increasing opportunities for sexual encounters, while at the same time decreasing unintended and unwanted intrusions into them. These state actions provide both models and seeds for long-term legal reform. *Park Politics* For the present, though, gays need to organize and put political pressure on the police to use their discretion and desist from enforcing solicitation and public indecency laws. In the Topeka case mentioned above, three different gay groups have banded together to protest police sting operations against gay men. Public forums are being held and attorneys are working to help overturn the city's soliomy solicitation ordinance applies only to gays because by definitional fiat it exempts heterosexuals from the class of people who can commit sodomy. Still this narrow and politically safe focus may be sufficient to do the trick, to get the police to leave gay turf well enough alone. In the late 1970s and early 1980s, Toronto's gay community organized against police raids on bathhouses. Hundreds of patrons had been arrested on a single day. Gays' dogged organizational efforts paid off. A majority of cases against those arrested were thrown out on various technicalities. And organizers managed to embarrass the government enough that such raids have passed from the Canadian scene. Mind you, the laws under which the busts were carried out are still on the books, but cultural forces and gay activism have stamped them "dead letters." The same could happen to solicitation and indecency laws in this country if gays were a little more courageous in defending our sex lives.