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The key to Nickerson's defense of a 647a lies in the last of three instructions that the judge must give a jury. That instruction requires that anybody convicted of lewd conduct "knows or should know that a person is or will be present and may be offended by such conduct."
"That makes any arrest by a decoy invalid!" asserts Nickerson excitedly. "See, an officer becomes a decoy to gain the confidence of the people he is going to arrest. And as soon as he does that, he is implicitly telling those people, 'Relax, man; I am not likely to be offended.'"
How does this differ from other undercover operations, in which officers are decoys in drug or prostitution stings? "Those activities are illegal unto themselves," Nickerson explains. "But sex in public is not illegal, surprise-surprise! It becomes illegal only when you do it around someone likely to be offended. When undercover officers make these arrests, they are alternately playing two roles-the willing decoy and then the offended party. But I say they can't have it both ways. And I've never had a jury disagree with me."
The problem, say defense attorneys, is convincing their clients to take these cases into open court. "These are very winnable cases when you go to trial, but they can be very embarrassing," says Loftin. "That's one of the things the police and DA count on. It's mortifying to put your penis into evidence."
And that kind of discovery isn't unusual when the evidence consists of testimony from an officer about exactly what he saw. "But God does smile on you sometimes," says Nickerson. "Once I had a client who had a Prince Albert-that's a stainless-steel ring-through his penis. But there was no mention of the ring in the police report. Or from the officer on the witness stand when we asked him to describe the defendant's penis. So we showed the jury-and we had the sales receipt to prove exactly when it had been installed."
Nickerson is laughing now, but he is fiercely passionate about the prejudice he reads into 647 arrests. "When you think of the thousands of discriminatory arrests for legal behavior, it's really horrible," he says. "And I'm convinced that most of this so-called lewd behavior is fabricated by undercover officers who know they can get easy arrests. It's prosecuted by district attorneys who realize they can compile impressive conviction records and collect lots of easy fines. If this was happening to any other group, there'd be a hue and cry, and it would be stopped. But these are gay men, and society is saying, 'Even if we can't arrest them in bars or their bedrooms like we used to, goddamn, we'll bust their asses.'"
It is a mistake to generalize tea-room behavior across gay culture-as inaccurate as extrapolating singles bars and swinging across the heterosexual landscape. And indeed, many in the gay-and-lesbian community have strong feelings against such overt promiscuity. "Personally, I don't believe people should have sex in bathrooms," says Loftin. "Generally, the people who do this-whether they are the tea-room queens out for thrills or the closeted man trying to live in the gay and straight world or the compulsive sex addicts-have some kind of problem. I have a hard time with the behavior, but there are better solutions than ruining their lives with an arrest or putting them in jail."
Opinion in the gay community tends to come together against lewd-conduct laws because that's where lewd-conduct laws tend to flex their muscles. Peruse the gay yellow pages and see how many attorneys advertise a specialty in defending lewd-conduct offenses.
"Public lewdness laws are weapons against gay sexuality," says Myron Dean Quon of the Lambda Legal Defense and Education Fund's Southern California office. "While they do not refer to gay sex specifically, they are enforced almost exclusively against people perceived to be gay."
Jack Sullens, an assistant deputy district attorney in Orange County for 20 years, disagrees. "I don't see it as the police focusing on a particular sexual preference," he says. "The police generally do not go out and begin to conduct investigations until they get calls from the public."
"The police and district attorney invariably cite public complaints as the reason for their undercover operations, arrests and prosecutions," says Covas. "But I have yet to ever have them come up with evidence of such complaints."
Says Sullens, "A lot of times, those people [the complainers] don't want to get involved."
Birmingham says the focus on public complaints loses track of a more important legal point. "Public prejudice is not enough to justify enforcement of a specific law against a group of people," she says. "In this case, it has to be more than, 'We just don't like homosexual conduct, but heterosexual conduct doesn't bother us.' It has to be more than that."
With a sigh, Smith denies that his department is acting out of prejudice. He insists he would prefer that the CMPD undercover detectives not focus on restroom cruising. "It's a low priority for me for a couple of reasons," he says. "Often, it's a 'victimless crime.' And there are plenty of other things we need to be doing. We are forced to take action because it's a public annoyance, but none of us like working it. It's really degrading."
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