A Stitch in Haste

Two more hasty stitches on the Larry Craig incident:

1. I wondered how long it would take for some people, most likely my fellow libertarians, to ask whether Craig's conduct should in fact be a crime.

The first example I've seen comes from Citizen Crain:

Craig then "tapped his foot," reported Karsnia, who "recognized this as a signal by those who wish to engage in lewd conduct." I'll leave it to you whether there might be one or two or 13 more innocent explanations for such behavior.

Finally, Craig's foot tapping crept over into Karsnia's stall and even made contact with Karsnia's foot. Craig then swiped his hand a few times under the stall divider, enough that Karsnia could see his fingers and even his gold wedding ring — a point Karsnia made sure to include in his report.

Based on this and this alone, Craig was arrested for lewd conduct. Now I'll admit to being much more naive than Sgt. Karsnia about the etiquette of toilet sex, but exactly how was this lewd? Strange? Yes. Annoying? Absolutely. Lewd? Explain that to me again.

Sorry, no. Intentionally (such things cannot happen unintentionally) touching the foot of the person in the toilet stall next to you and reaching underneath the divider are, by any denotation, "lewd" acts. They are also (assuming an innocent private person is in the next stall), a properly proscribable act. If the purest definition of libertarianism is "the right to be let alone," then surely there is a right to be let alone in a toilet stall.

There is also, of course, no evidence of entrapment.

What would be legitimate concerns, which I hope do get raised subsequent to this story, are these precedent questions:

--Is it a proper, or wise, expenditure of law enforcement resources and taxpayer money to have undercover officers sitting in airport restrooms waiting to be cruised by self-loathing gays? Or are the terrorists hiding and plotting in the toilet stalls now?

--Is it proper to combat an offense that, as a matter of simple logistics, can only be committed by gays? I suppose straights can be lewd elsewhere in an airport, but is casing the restrooms per se discriminatory?

More thoughts at Bilerico.

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2. Craig suggests that we ignore that guilty plea behind the curtain:

I should have had the advice of counsel in resolving this matter. In hindsight, I should not have pled guilty. I was trying to handle this matter myself quickly and expeditiously.

Just one problem with that: Pleading guilty when you know you're not is potential perjury —

Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows:
...
6. Whether the defendant understands the nature of the offense charged.

7. Whether the defendant believes that what the defendant did constitutes the offense to which the defendant is pleading guilty.

The court with the assistance of counsel, if any, shall then elicit sufficient facts from the defendant to determine whether there is a factual basis for all elements of the offense to which the defendant is pleading guilty.

--Minn. R. Crim. Proc. 15.02

It is possible, indeed likely, that Craig was not under oath at the plea hearing, since he was charged with only a misdemeanor. Still, lying in court is lying in court: Out of the sexual pervert frying pan and into the moral defective fire is an improvement?

Incidentally, lack of counsel would certainly be grounds to withdraw the plea, at least for a while. If Craig decided after the fact that he instead wanted his day in court, he could still have gotten it. Perhaps not now, after so much time has expired. But he could have. I suspect, however, that we will not see such self-vindicating efforts from the guilty-pleading senator.

The plea document is here.

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Finally, a summary of Craig's self-loathing bigot votes here.