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As the Idaho Statesman digs up further evidence that perhaps Sen. Larry Craig has not been honest about all his activities, maybe it’s time to sort through all the falsity in this story. The Republican senator from Idaho refuses to admit that this scandal is all about sexual orientation. But he’s not the only one. First by the police and now by the Senate, Craig is being investigated for allegedly hitting on another man in a lame fashion in search of anonymous sex. In other words, he is being investigated for allegedly being secretly gay. What this one little case demonstrates, aside from a spectacularly poor choice of forum for consensual conduct, is that our justice system � from the lowest levels of law enforcement to the most august ethics panel � is still determined to treat gay sex differently from straight sex. SINS OF THE SENATE Let’s start with the investigation by the Senate Select Committee on Ethics. Admittedly, the Senate has broad constitutional and statutory authority to look into the conduct of senators. Article I, Section 5, of the Constitution states: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.” And the Senate Ethics Manual states that the Senate “may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” But Stanley Brand, a D.C. lawyer representing Craig, has the better point. He wrote the Ethics Committee to argue that there has not been “a single case where either the full Senate or the Ethics Committee has taken cognizance of a complaint, or facts publicly disclosed in the media, to consider conduct � here a misdemeanor � which in no way implicated official action by the subject Senator.” Brand could have added that this investigation would never have been initiated had the senator been caught propositioning a member of the opposite sex. Republican officeholders have repeatedly assured the public that the key difference between Craig and Sen. David Vitter of Louisiana, who allegedly visited female prostitutes, is not, repeat not, that Craig might be gay and Vitter straight. No, no. The key difference is that Craig has pled guilty to a very minor criminal charge. But that does not fully explain why one Republican senator is being investigated by the Ethics Committee and the other is not. As for the Democrats, they seem to want to pursue Craig as far as possible into the 2008 election season. But they too have a problem. It’s always tempting to sling charges of hypocrisy, and there is a poetic justice in seeing someone hoist with his own petard � or in forcing the other party to flush out one of its own on grounds of personal morality. But the Democrats cannot do so without pursuing the sub rosa accusation of homosexuality, while anxiously ignoring any supposition that they are investigating an individual’s lifestyle. Publicly they have to deny the obvious, that investigating a man for conduct they would not have investigated in heterosexuals is frankly discriminatory. After all, other senators have engaged in acts equally embarrassing, though lacking the gay dimension, but nobody is going after them. How does Sen. Barbara Boxer (D-Calif.), the chair of the Ethics Committee, explain this? UNNATURAL SELECTION Now let’s consider the sting operation run by local police in the Minneapolis-St. Paul International Airport restroom. What precisely did Craig do that required his arrest and prosecution? The operation that caught Craig produced one count of peeping and one count of disorderly conduct. Technically, Craig pled guilty only to the second count, but the acts in question are completely intertwined. The count of peeping alleges interfering with privacy “by surreptitiously gazing, staring or peeping” into an aperture as in a hotel room or tanning booth “or any place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose private parts.” The undercover officer’s original complaint against Craig provides the time line, such as it is. According to the document, Craig first looked into the officer’s stall from outside, repeatedly gazing into it “over a period of over two minutes.” That’s a long time to look into a bathroom stall. Craig could see � or thought he could see � that the officer was only passing the time of day, a sign of interest to the hopeful. Obviously for the sting to work, the officer had to convey, at least passively, that he might be receptive to overtures. And Craig had plenty of time to see that too. So even if proven, the allegation of peeping pertains to behavior that the defendant believed or hoped was consensual. The second count of disorderly conduct alleges “engaging in offensive, obscene, abusive, boisterous or noisy conduct or in offensive, obscene or abusive language tending reasonably to arouse alarm, anger or resentment in others, in a public or private place, knowing or having reasonable grounds to know, that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace.” Again the time line, such as it is, provides a clue. After the alleged peeping, Craig entered the stall next to the officer’s, at which time the officer did not hastily leave � another sign for the hopeful. Then for about another four minutes, Craig allegedly performed various hand motions, amply characterized by comedians, while the officer remained where he was, according to the document. After each of the three alleged swipes of the hand, the officer still did not leave, attempt to beat up the senator � l� Tucker Carlson, or even yell. Again, given that the officer was quietly signaling potential interest, Craig’s communications appeared to be welcome. In short, Craig was, at worst, tentatively seeking consensual sex with another adult, which is no crime. And the airport restroom was reportedly known as a gay meeting place, which explains why he might have hoped to find a like-minded individual. The efforts of adults to find sexual partners for a noncommercial encounter � i.e., without money changing hands � are no business of the police. Right? So the justification for the sting operation comes down solely to the possible venue for these final encounters. CLEANER RESTROOMS The kicker is that there are other, better ways to handle the problem of men actually having sex in public bathrooms. The officers were cruising the airport restroom in a crude, low-tech sting operation that drains personnel from weightier duties and succeeds mainly in preventing homosexual acts for a day. In other words, if the goal is to humiliate a handful of gay men occasionally, the sting is a very effective tool. If the goal is to create a long-term atmosphere that discourages sex in public restrooms, it is not. A better prophylactic would bring in the whole community: young women, old women, and children. As Jane Jacobs noted years ago in The Life and Death of Great American Cities, the best security measure for any neighborhood is the routine presence of ordinary people. In other words: unisex restrooms. This is less horrifying than it might sound. Countless offices and restaurants have them today, without hoopla, not to mention every single home in America. These restrooms would operate on the same architectural principle as portable toilets. They would offer individual rooms within the larger bathroom rather than partially walled stalls. And yes, they would be kept clean. Come to think of it, the presence of regularly scheduled cleaning crews would help as well. Regrettably, our cultural definition of masculinity seems to demand less restroom privacy for men than for women, maximizing the men’s exposure to each other and removing the natural inhibitors of female presence and random chance. The idea seems to be to make them resemble a men’s prison, complete with a range of clandestine activity. TAKE OFF THE MASKS In the meantime, the first Senate ethics investigation, apparently, into intimate private relations bearing no connection to the business of the Senate grinds on. Admittedly it is tempting, in the midst of a strike by professional Hollywood writers, to invite the kind of inquiry guaranteed to produce some truly entertaining reality TV. But setting aside the already low public opinion of Congress reflected in current polls and the issue of fair treatment for Craig himself, who is already being punished by the courts and the voters, there are weightier reasons not to go forward with an ethics investigation. A strong argument can be made that the real heat against Craig, the initial roar of public attention and late-night comedy, was sparked not by the criminal charges but by the disjunction between his alleged acts and his public positions. In other words, it was his alleged hypocrisy and dishonesty that really reflected unfavorably on the institution as a whole. Does that mean the Ethics Committee could just sidestep the legal case, with its narrative of consensual acts, and simply investigate Craig on allegations of being gay while lying about it and pushing legislation hostile to gays? But that wouldn’t look good for either party. Craig is hardly the first Repub-li-can accused of pursuing anti-gay policies while secretly having gay sex. And the alleged political imposture here pertains entirely to sexual orientation, which Democrats supposedly consider the people’s personal business. Attacking the deeper wrongdoing would also open the door to ethics inquiries into far graver impostures in the Senate. If hypocrisy among politicians is the target, where does the investigation end?
Margie Burns is a freelance journalist in the Washington, D.C., area.

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