Every year in California and in the rest of the nation hundreds of gay men are arrested by decoy police for cruising behavior which when engaged in by straights is ignored. (This is discriminatory enforcement and violates the equal protection clause of the 14th Amendment according to the California Supreme Court in a case argued by this writer). These arrests are also invalid in that the behavior for which most persons are arrested is legal in California and in those states which have abandoned sodomy laws. This note is to assist persons who desire to cruise for nonmonetary sexual partners in public places by acquainting them with the law so that their behavior will comply with it.
The first thing to realize is that it is perfectly legal to cruise for sexual partners in public areas for non-monetary sex if your intent is to perform the act in private or at a place where it is extremely unlikely that a third person will be present to observe and be offended by the conduct.
In other words, the verbal solicitation made in a public place: "Lets have sex at my house (or yours, or the motel down the street)" is a completely legal solicitation in California and in most states which do not criminalize private sexual behavior between consenting adults. If this is what you say and you are arrested by a decoy cop, I not only will get you acquitted but I will successfully sue the cops for false arrest and win hands down. (Some cops know this so if the person declines either option and suggests going elsewhere he probably is a cop and you should terminate the conversation immediately).
It is also legal to say (and mean) the following: "Lets go drive somewhere secluded and have sex." Here though you need to be cautious. The cop may insist that the location you are suggesting is one where it is very likely there will be third persons present who may be offended by the proposed conduct. He also may swear that your intent was to perform the act in the car which California law considers a public place if it is parked in a public place. If its your word against his you will usually lose. If, however, it is after midnight, and in a remote area, you probably will win since the likelihood of that possible third person is less the darker and the more remote the proposed site is.
The simple solicitation: "lets have sex," without specifying where, is technically legal but fraught with difficulties. The cop will insist that your intent was to perform the act right there where you are standing, or in some other public place where third persons are likely to be present and who may be offended. Since there is absolutely no evidence one way or the other, case law in California says that the court must find you not guilty. However, it may be necessary to try the case to establish that fact and that can be expensive. Better to say over and over: "Your place or mine (or the motel)." That is perfectly legal language and not only will get you off, it will get you money for false arrest.
If your preference is to engage in sexual touching in Tearooms, rest stop restrooms, and parks my best advice is don't. California law prohibits sexual touching of yourself or another's genitals, buttocks, female breast, in a public place, a place open to the public, or one exposed to public view if the actor knows or should know of the presence of persons who may be offended by the conduct. Moreover sexual touching of another is quite likely to result in a sexual battery charge if you touch a decoy cop. In fact any touching of a decoy cop whether sexual or not may result in that charge even though he has invited it. Again the problem is that he will deny enticement and its your word against his. Don't plan on winning on entrapment either because California's standard is absurdly high and permits the policeman to do almost anything with impunity. (One of the oldest and most foolish canards is the belief that a cop must admit he is a cop if you ask him).
If however, you absolutely must engage in sexual touching in a cruisy area here are some legal tips which may enable you to avoid being arrested or if you are, successfully defend yourself. As in real estate, the name of the game is location, location, location. Pick a spot which is totally secluded--a thicket, a totally enclosed stall, a dead end road--and your chances of avoiding arrest or conviction improve. Verbalize first: "May I touch you?" Remember, however, that the decoy cop is aware of all the signals (including foot tapping in restrooms) and even though this behavior on his part legalizes your response (because you reasonably don't expect to offend him) this defense usually cannot be presented until trial. Also cops who volunteer for these decoy operations are notorious for omitting many facts, fabricating, others, and occasionally outright lying. Moreover jurors who would readily acquit heterosexuals for similar non-monetary behavior will find the homosexual nature of the conduct itself offensive and ignore (or disbelieve) the behavior of the cop which enticed you.
Should you have the misfortune to encounter a decoy cop, endeavor to remain calm. Be polite. If he tries to get you to admit to sexual behavior, simple say you thought he was interested in you. If he persists simply say you would prefer to speak to an attorney. Don't argue with him. Sometimes silence is the best defense in such stressful situations. He may try to coerce you by saying he will just "cite you" if you confess but will haul you down to the station if you don't. Citing you and releasing you will not make the eventual disposition any easier. Thus, an admission, particularly an incorrect one, will do far more damage than a few hours spent at the station (where you most likely will be booked and then released). Even if cited, you would eventually have to go to the station to be booked anyway, so there is nothing to be gained by saying what he wants you to say.
One specific thing to remember: If the cop asks you if you are circumcised say the opposite. The reason he asks is that later on his police report he will say he saw your exposed penis and will state (as proof) whether or not you are circumcised. If you tell him the opposite, later in court you can prove he never saw you penis by proving him wrong about your circumcision (or lack thereof).
Ultimately, sting operations by decoys which focus exclusively on homosexual conduct (and ignore heterosexual conduct) will end because it is discriminatory. (A follow-up case is presently before the California Supreme Court). Until that time, gays cruise in public places at their peril.
Please see: www.cruisingforsex.com
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