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Home > Features > Legal Q & A: About Public Sex

by Keith Griffith

Sometimes knowledge can mean avoiding big trouble including arrest, jail time, fines, lawyer fees and even having yourself placed on a sex offender list. Cruisers need to be more aware than the average citizen of legal rights and obligations because, frankly, the police don't play fair and the odds are not in your favor if you get caught in a sting operation. Trying to help with questions, we put together a series of questions and presented them some years ago to a series of lawyers across the United States to determine some basic knowledge you should have. Be aware: legal advice in one state does NOT apply to every other state and even state laws are subject to different interpretations.

Much of what we learn in these answers is not good news, though it is essential to know it. Basically, the 'system' works against you if you get caught with your pants down. However, knowing your rights can save you from having an awkward situation escalate into a life-changing one. I especially appreciated this from ACLU counsel Mary Bauer of Virginia when I asked her how we can go about changing laws against men who cruise: "I believe in the power of people to change both the law and the political climate. In fact, I think it is the only way to make a difference. Frankly, I think that in many places, people would be shocked by what the police do in the name of the people. Making these things public and bringing political pressure to change policy is the single greatest tool people have to change the oppression of gay men and lesbians, in my opinion."

"I know of no law requiring undercover officers to self-identify as such."

Some additional places to turn online for advice are the Lambda Legal Defense and Education Fund Little Black Book which deals directly with the rights of men who cruise. Also, the ACLU has prepared a small, wallet-size guide, applicable to citizens of the USA, that deals with how you should respond whenever you encounter the police. You can download a card about your legal rights here.

1. What right does a person have to be walking in a public park? Can a police officer stop this person and make a demand of them, and if so, under what circumstances? How would you advise the person to respond in such a situation?

Stephanie Loftin, California: A person has every right to be in a public park unless there is a "stay away" order in place for probation purposes (usually part of any 647a plea). Regarding when can an officer stop you, any circumstance, is the answer, unfortunately. Respond with a question, stay polite and reasonable but ask, "who are you and what do you want?" Keep walking unless the person ID's himself/herself as a police officer and demands that you stop.

Lawrence Rolla, Illinois: Provided that it is not past curfew (or there have not been posted any specific access restrictions), and provided that the person is not naked, a person has an unrestricted right to saunter as he wishes through a public park. Likewise, a police officer has a fairly unrestricted right to stop someone in the same park to engage the person in a limited fashion to determine the person's reason for being there. I know this sounds a bit contradictory. Technically, the courts require the police officer to have a 'reasonable suspicion' prior to stopping a person to question them. But the threshold for 'reasonableness' is very, very low.

If you see a cop approaching you or attempting to signal you, (provided, of course, that you are not blissfully wrapped around a tree with your pants around your ankles and a guy named Mario is pumping away), calm down and stop. Do not throw drugs out of your pockets onto the ground. Don't try to run away or evade him - this will only serve to arouse the officer's suspicions. Under the law, flight is circumstantial evidence of guilt.

Assuming , therefore, that an officer has stopped you in the park and begins to ask you some questions, be polite in your responses. There is a majority consensus among the courts that you must supply the officer with your name, address, and a general explanation of your whereabouts (why you are there and what you are doing). You do not have to give your employer's name, your mother's maiden name, or your social security number. If you feel you have to say something, then blurt out something non-injurious, e.g. "I'm just waiting for a friend." Do not say, "I'm waiting to meet a dealer friend so I can score some special K for the upcoming White Party."

Remember, however, if you choose to deny information to a cop, do so politely and with your best "It's 4 am, and I really want to go home with you" smile. If that doesn't work, and the cop becomes belligerent, then throw the burden on your lawyer, viz. "My lawyer advised me that I shouldn't answer those questions." That should suffice. Police are accustomed to lawyers advising their clients to be uncommunicative.

I can't emphasize enough the fact that you do not have to provide your employment status. If the cop presses, and you really want to get out of there, say you are a laborer. Or if your forearms give you away, then tell him you are in retail or are an administrative assistant. I have had too many clients blurt out the fact they are doctors or priests or gym coaches.

Rudy Serra, Michigan: When confronted, the citizen should attempt to be as cooperative and non-confrontational as possible. If they have identification, and if there may be some basis for probable cause (even if it is unknown to the citizen) it is usually best to cooperate with police demands. It is not unheard of that officers will make an arrest for "accosting and soliciting" and will claim that a person offered or requested money for sex.

"Everyone should be cautioned that there are criminal charges that can come down to 'your word against mine' and that police officers have been known to lie in criminal prosecutions."

A pedestrian is not required to carry proof of identity. To stop a person and demand identification, an officer needs probable cause to believe that a crime has been committed and that the person being confronted may reasonably be suspected as a perpetrator of that crime. Michigan statutes require the operator of a motor vehicle to have a valid driver's license and authorizes officers to demand that the driver produce an operator's license.

2. Similarly, the same above scenario in a rest area or public toilet.

Michael Finesilver, Florida: Everyone has a right to use a rest area or public toilet unless that area is closed to the public and that fact is posted. However, I would caution that the right to use a public restroom does not include the right to engage in sexual behavior, especially in a situation where one is near a beach and children could walk in. These restrooms are patrolled heavily and cruising or public sex is not tolerated by law enforcement.

Rudy Serra, Michigan: A rest area or public bathroom does not differ substantially under Michigan law from a public park. The courts have said that there is no reasonable expectation of privacy in a public restroom, just as there is no reasonable expectation of privacy in a public park.

3. Shifting to non-public places, what rights do people have to be in a shopping mall? What authority does a security guard have in making demands of a person in a mall, either in the walkways or in a restroom?

Lawrence Rolla, Illinois: As to a shopping mall, the same access rules apply. You are permitted to be there within regular store hours unless there are specific time restrictions posted. The authority of a mall security guard is much more limited than that of a police officer, i.e. the security guard cannot detain you once you get beyond the limits of the mall parking lot. Also, the security guard cannot actually make an arrest. He can detain you for questioning, but must call the local police department to effectuate an actual arrest. That being said, the security guard can stop you for questioning as to your name and reason for being in the mall. He can probably also ask you to leave the mall. (Legally, he needs a specific "reasonable suspicion" to do this, but if you raise a ruckus, you are technically disturbing the peace, and certainly may be arrested for that).

Stephanie Loftin, California: Same as above. The authority derives from the "Merchants or Shopkeeper's privilege." This is basically a qualified privilege that allows store security or owners or their agents to investigate illegal activity on the premises, usually shoplifting. Private security has no greater privilege than any other private citizen, which means if they are a witness to a crime having been committed, they may detain the suspect until the police arrive and make a citizen's arrest. They must file a formal complaint with the police officer in order to effectuate this, since the officer did not see the crime (generally applies to misdemeanors, not felonies).

Michael Finesilver, Florida: Obviously, a person has every right to be in a mall whenever the mall is open for business. However, a security guard may detain a person and call for law enforcement backup, when the guard feels a person is engaged in or about to engage in criminal behavior. Mall security are not sworn law enforcement officers but they are quasi-law enforcement officers and are charged with keeping the peace and detaining people who they think are shoplifting or engaged in other criminal activity.

4. Under what circumstances is it permissable for a police officer to search your private property (car, backpack, etc)? Similarly, does a security guard have such permission by law?

Mary Bauer, Virginia: A police officer generally may only search for probable cause. Exceptions to that rule are for a search incident to an arrest, or a "Terry" stop -- a brief investigatory stop and search when a police officer has reason to believe someone may be armed.

Rudy Serra, Michigan: Police are permitted to stop motor vehicles if there is an infraction or if there is probable cause of an infraction. Generally, they will ask for consent to search a car, and will usually do so only if there is some problem other than a simple routine traffic offense. NEVER CONSENT TO A SEARCH of your car or your person.

Police are permitted to search motor vehicles incident to a stop if they develop probable cause of a crime or encounter an irregularity such as no license, proof of insurance and so on. They are also permitted to search a person and their belongings if they have probable cause of a crime or if they intend to hold the person, or if the search is otherwise reasonably needed to protect the officers from possible harm such as a hidden weapon.

A warrant is required to search a person, residence or business unless an item is in plain view. Likewise, in searching a person, the police need no warrant if they can tell by "plain feel" that there is a weapon or suspicious object. Michigan court's have refused to authorize a "plain smell" exception whereby an officer could search without a warrant based upon the odor of marijuana. Person's are subject to warrantless search in many public locations such as court houses and government offices. An individual is constitutionally protected from being arbitrarily stopped on the street and searched without a warrant.

Protection against unreasonable search and seizure does extend to private security guards. They need probable cause to act and are required to act reasonably and within the law.

Lawrence Rolla, Illinois: State courts are all over the map on this, [but] the law is settled that any contraband that the cop can easily see in the vehicle ("in plain view") e.g. on the car seats, on the dashboard, is subject to immediate seizure. Likewise, the law is settled that if you consent to a search, the police can search the entire vehicle or backpack or anything else they may be able to lay their hands on. If you do not consent, then as a general rule, the cops must announce they are arresting you and taking you into custody before they are able to search the complete vehicle, rummage under the seats, open the glovebox, etc.

A security guard has no authority to conduct a search. He must call the local police department to send an officer to the mall to conduct any searches.

5. If a person is discovered by law enforcement in a compromising position, would you advise them to be cooperative and speak with the officer or is it best to refuse to answer any questions?

Mary Bauer, Virginia: My general advice would be to ask for a lawyer immediately, and to politely refuse to answer questions until one has had a chance to speak with a lawyer.

Lawrence Rolla, Illinois: Returning to our friend and Mario, do not attempt to talk your way out of it. Remember the cops are on their own turf everywhere but in the courtroom. So do not challenge the police on their authority to arrest. This is ultimately a determination for the courts -- not something to be argued out between you and the police officer.

Maintain your cool, and don't get cocky with the police. A general rule of thumb is that the cockier you are, the tighter the handcuffs. An equally important corollary of this is not to get too chummy with the police. Do not banter about the weather or how you just l-o-v-e their uniforms. Remember the police are not your friends. If they were your friends, you wouldn't be sitting in the back of a squad car in handcuffs like a feature story in Hombre.

Similarly, do not decide to suddenly practice law. A classic example is the person who decides to lecture the police on their failure to read him his Miranda rights. The Miranda protections have suffered serious encroachments over the years, and the failure of the police to read them does not invalidate an otherwise proper arrest. Upon being arrested, the only legal rule to remember is to remain silent -- do not volunteer information. Instead, listen carefully to everything the police may say -- especially to each other, and observe their actions as best you can. Make mental notes of all of this; it may prove invaluable to your lawyer when the case does go to trial.

Also, do not sign anything (whether it is given to you by the police, or if it is given to you by a security guard at the mall). The only thing you are to sign is your bond slip so you can get the hell out of there.

Likewise, you will be allowed to make a phone call(s). Call someone to bail you out. Do not use up your call(s) needlessly, viz. do not use the call to phone Elizabeth Arden to cancel the facial.

Stephanie Loftin, California: Never offer information to the police. Any statements you make can and will be used against you in a court of law. Even IF it seems like a dead-bang arrest, do NOT help the prosecution make their case.

6. When is it best to try and settle a matter without going through litigation? When it is best to demand your right to a day in court?

Stephanie Loftin, California: If you are guilty, and have no defenses - plea bargain. Other considerations include lack of funds with which to defend a case (unless you qualify for the Public Defender), the stress of engaging in a trial situation, and job jeopardy for having to hang around a court house for a considerable period of time.

Rudy Serra, Michigan: Everyone should be cautioned that there are criminal charges that can come down to "your word against mine" and that police officers have been known to lie in criminal prosecutions. Documentation, evidence, proof and cooperative witnesses are all considerations. All police harassment should be legally confronted and resisted in court if possible. If you have the funds to hire an attorney you should do so.

7. Many men believe that by asking a person if they are a police officer, that police are required by law to self-identify when pressed. Is this true?

Michael Finesilver, Florida: THIS IS ABSOLUTELY FALSE, Florida law does not require the undercover officer to reveal his identity as an officer if asked.

Mary Bauer, Virginia: I know of no law requiring undercover officers to self-identify as such.

Lawrence Rolla, Illinois: I am always amazed at this question. Normally, it is raised by my 'escort' clients who seem convinced that the policeman must reveal his job description prior to handing over $150 and dropping to his knees. The best way to address this rather charming bit of naivete is to ask oneself if when a drug dealer is approached by an undercover vice cop, and the dealer innocently asks, "Yo, man, like I gotta know whetha yous' is a narc. Like, yous' gotta be straight with me, man." Do you really expect the courts to require the police officer to nod his head, sheepishly pull out his badge and his graduation photo of himself with Aunt Bridget at the Police Academy prior to arresting the dealer?

In sum, whether they are trolling for drugs or trolling for dick, an uncover cop is exactly that, u-n-d-e-r-c-o-v-e-r.

8. In such a scenario as men often encounter in public toilets or parks, at what point, that is to say by what actions does this person cross a line and become liable for breaking a law?

Lawrence Rolla, Illinois: You commit a crime if while in a public place, that is a place where there is no reasonable expectation of privacy, e.g. a public washroom (even behind a locked stall); a public park; a parked car located in a public area; and so forth, you:

(a) expose yourself or touch yourself for purposes of arousing sexual desire either in yourself, alone, or in the presence of another person;

(b) engage in a sexual act either with yourself or another person (regardless if you are an active or passive participant);

(c) touch another person's genital area even though they may be fully clothed at the time if the touching is intended to arouse sexual desire either in that person or in yourself.

Michael Finesilver, Florida: The answer varies, but unfortunately law enforcement officers have the tendency to arrest people when they have done very little in these encounters. The unfortunate thing is that it is usually a one on one situation where it is the officer's word against the Defendant's.

9. When two or more men go behind a stall door in a public toilet and close the door, are they not considered to be engaging in private, consensual activity protected by law after that stall door is closed?

Stephanie Loftin, Califorina: No. However, there is a case in California (People v. Pryor) that states that the Vice Police cannot conceal themselves in a little sneaky peeky place and spy into a closed area where there is an expectation of privacy.

Lawrence Rolla, Illinois: As a general rule, locked doors mean nothing if they are located in a venue that is public. If the public has immediate and free access to an area, it is public. The legal justification for this rule is that the public has a right to be protected from unwelcome and unsolicited sexual material.

10. Is there anything a man can do to protect themselves from possible entrapment when they are propositioned?

Lawrence Rolla, Illinois: Before you expose yourself or touch the other party, say "You know, I really love to kiss. Let me just kiss you first before we do anything else." If it is a cop, he will run like the hills before he lets a gay man's tongue slither down his throat.

Stephanie Loftin, California: Make a date to go somewhere else, like a hotel or a house.

Rudy Serra, Michigan: 1) Have witnesses or video/audio tape.

2) Do not ask for or suggest anything illegal. Sex is legal if it is between competent, consenting adults (over 16), private, not paid for and does not involve any force or coercion. No discussion of anything other than free, voluntarily, private activity should occur on the streets, in a car or any other location you do not control.

3) Prevent entrapment by voting against sheriffs, prosecutors, council members, commissioners, judges and others who believe it is acceptable to target certain people and then use tax dollars to set-up undercover operations to entrap and stigmatize them.

4) Push for legislative repeal of the sodomy and gross indecency laws.

5) Prevent entrapment by demanding the de-criminalization of sex between competent, consenting adults in private, non-commercial settings.

6) Use venues where entrapment is more difficult, such as bars, personal ads, clubs and internet connections. Avoid street-walkers. Avail yourself of FREE sex (with other interested adults) rather than paid sex (which is illegal).

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