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Sex Is Not A Public Nuisance
The New York Times this morning reports on a meeting last Wednesday involving city and state elected officials including Christine Quinn (City Council Speaker) and Thomas Duane (State Senator representing parts of Manhattan), Brian Conroy (the NYPD's Vice Squad commanding officer), and LGBT rights activists. The meeting focused on whether or not the city is targeting gay men for arrest on prostitution crimes because of their sexual orientation.
That is the wrong question.
The more relevant questions are: Why is sexual activity - the buying and selling of pornography, the accepting of money for sex - being defined as a public nuisance in the first place? And, what does it mean that simply liking pornography and being in a porn shop is enough to make one the target of a prostitution sting?
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The men have been arrested, according to the article, as part of an attempt by the city to target "public nuisance" crimes by focusing on locations where illegal activities like gambling, underage drinking and prostitution take place. While it is true that prostitution is defined as a crime in New York City the description of this sting operation demonstrates just how private a public nuisance can be. In the following quote from the article, for example, see if you can pick out anything that seems especially public (by which I mean likely to disturb anyone who did not intend to see or participate in the activity):
An undercover officer paid a $10 fee to enter the basement, where there is a theater and viewing booths. There, the officer would meet men and offer to pay for sex.
One man who was promised $25 for a sex act offered to do a different sex act for $50, the lawsuit says. Another, it says, said, “O.K., let’s go” when offered $100. Both were arrested once they left the store, so as not to tip off the business or other patrons about the operation.
In fact, if there is a nuisance at all it is the nuisance created by the sting operation itself. Private citizens are being arrested for a crime they did not initiate and may not have committed at all.
I'm glad that gay rights activists are getting involved in this fight, but to fight these arrests based on unfair treatment of gay men is wrong headed. The real problem here is that sexual behavior between consenting adults is being defined as criminal and it should not be. This criminal status reinforces the stigma attached to sex outside of heterosexual monogamous marriage. The article quotes Senator Duane making exactly this point. He says that several of the men who had done nothing wrong pled guilty to lesser charges because “There is a certain amount of discomfort that these men would be having consensual sex with someone that they just met”.
What this means is that in at least some cases we have men who are essentially convicted of a crime because it is too embarrassing to fight a prostitution charge by arguing that in fact they were just going to have relatively anonymous consensual sex.
This is a wasteful use of public resources. There are much better uses of taxpayer dollars than the policing of consensual sex.
Homophobia and heterosexism are significant problems in this society and we must be diligent about fighting them. This, however, is not about homophobia. This is about a much wider stigmatizing of all kinds of sexual expression outside of monogamous marital sex. We are in a period of increasing puritanism when it comes to sex and the law. Crackdowns on BDSM dungeons in New York, and the new anti-porn and antiprostitution laws in the UK are examples of societies becoming less tolerant of sexual expression rather than more tolerant. The arrests of these men need to be understood in that context and the fighting of their arrests needs to be done on the grounds that no consensual sexual expression should be criminalized. Ultimately that is probably the best way to fight homophobia in the first place.
