Doing It In The Road

c57175.jpgDo you have a right to indulge in consensual public sex? In Massachusetts, at least, that's not a simple question. The answer depends on whether you "intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons...," the state's highest court observed in 1981, reversing a conviction for "lascivious" public conduct in a car parked in a deserted lot, at night (deserted except for the police officers who trailed the car.) The law against public sex "is not designed to punish persons who desire privacy and who take reasonable measures to secure it," the court explained.
  
The policing of public or quasi-public sex has long been entangled with gay rights issues, since gay men have frequently been targeted by overly aggressive enforcement efforts.  In 2002, GLAD (Gay Lesbian Advocates and Defenders) unsuccessfully sought a declaratory judgment from the Massachusetts high court protecting consensual sexual conduct in "wooded outdoor areas; vehicles parked in a parking lot; and secluded areas of public beaches."  As Don Gorton, president of a gay rights group recently complained to the Boston Globe, "(W)henever police go into a gay cruising area, civil rights problems result.'' Gorton was expressing concern about increased police patrols of the Back Bay Fens, where community gardens co-exist with gay couples (or triples for all I know) more or less hidden in high reeds.  

The police plausibly claim to be focused on deterring serious crimes -- assaults, robberies, drug dealing -- not consensual sex, although, according to the Globe, "If the police presence also has the effect of deterring public sex, many of the parkgoers see that as a welcome development," as I would, if I frequented the Fens.  Still, I also welcome a police decision not to make public sex arrests, especially during a reign of sex offender registries, when convictions for minor offenses can result in major deprivations of liberty.

But while the idiocies and abuses of the criminal justice system are good reasons to decriminalize discreet, consensual public sex, there's virtually no civil liberty interest in legalizing it.  Public cell phone conversations are bad enough.  Public sex is an even more obnoxious appropriation of public space for a particularly exclusive private purpose.  Arguments for legalization often rest on privacy claims, but it's a perverse assertion of privacy that comprises this invasive exercise in publicity.
 
(Photo: Flickr User D.C.Atty)

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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