Right at the beginning of the post, I'm going to state that I find Larry Craig's conduct in the Minneapolis-St Paul Airport reprehensible. I find his conduct during his arrest even more so, obviously trying to intimidate the arresting officer by giving him the Senate business card. Looking for sexual partners in public restrooms reflects very badly on Craig, and makes his political posturing on "family values" a joke.
All that said, I think we have to ask ourselves about the nature of the crime itself. After reading the complaint, it hardly makes for a good case for police intervention, let alone convictions on disorderly conduct:
“I could see Craig look through the crack in the door from his position. Craig would look down at his hands, ‘fidget’ with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes,” the report states.
Craig then entered the stall next to Karsnia’s and placed his roller bag against the front of the stall door.
“My experience has shown that individuals engaging in lewd conduct use their bags to block the view from the front of their stall,” Karsnia stated in his report. “From my seated position, I could observe the shoes and ankles of Craig seated to the left of me.”
Craig was wearing dress pants with black dress shoes.
“At 1216 hours, Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct. Craig tapped his toes several times and moves his foot closer to my foot. I moved my foot up and down slowly. While this was occurring, the male in the stall to my right was still present. I could hear several unknown persons in the restroom that appeared to use the restroom for its intended use. The presence of others did not seem to deter Craig as he moved his right foot so that it touched the side of my left foot which was within my stall area,” the report states.
Craig then proceeded to swipe his hand under the stall divider several times, and Karsnia noted in his report that “I could ... see Craig had a gold ring on his ring finger as his hand was on my side of the stall divider.”
Let's stipulate that all of these actions are a well-known prelude to sexual encounters, even encounters conducted in public restrooms. Even so, nothing Craig did should constitute a crime, with the possible extreme interpretation of battery by touching his foot to the undercover officer. A series of signals that consist of foot-tapping and hand-swiping harms no one but the reputation of the man using them.
Had Craig actually exposed his genitalia in a public manner for the purposes of sexual gratification, that would have been a crime. Had he offered to pay for the officer's sexual services, that would have been a crime. How does foot-tapping and hand-swiping amount to disorderly conduct?
Contrast this to a prostitution bust, for instance. People cannot be convicted or even arrested for signaling prostitutes for sexual services; an explicit offer of sex in exchange for money must take place. Tapping feet, hand signals, and brushing up against the toes of a prostitute on the street aren't enough to get someone arrested. In sting operations, police have to get that explicit offer before making an arrest.
What Craig did was monumentally stupid and deservedly should shut down his career in the Senate, but all it comprised (in itself) was an offer of consensual sex, and there is nothing inherently illegal in an offer of consensual sex. Anyone signaled in such a manner could just as well tell the signaller to get lost, just as they could in a bar or nightclub. No one was harmed, and no crime was committed, even though many view the behavior as distasteful and out of place. As long as no sexual act takes place in the public area, I'd say no crime takes place. That's why I think David Vitter should be seen as at least as culpable as Craig, and possibly more so.
Now let's see the fur fly in the comments! Have at it; I'm prepared to be convinced of either position.
UPDATE: Don't misunderstand me. I am not arguing to reopen the case; Craig pled guilty, and he's a grown-up with plenty of access to an attorney. Claiming that he did that as a "mistake" is almost as laughable as the rest of his defense.
Let's put it another way. Take Craig out of the equation and replace him with Generic Suspect. What crime got committed? (I should have framed it this way from the beginning....)
UPDATE II, 9:04 PM: Just got back from my State Fair broadcast and caught up on the comments -- which are for the most part fantastic. Great thread, and I thank you for maintaining a respectful and thoughtful tone.
I want to answer a couple of points, just to clarify. Several people have noted that the arresting officer also charged that Craig peered through the gap in the stall door. However, the officer also noted that Craig was stationary and standing three feet away from the stalls, and one could at least argue that the officer may have initiated eye contact. Obviously Craig chose not to challenge the disorderly conduct charge, but the city didn't press the peeping charge; he only pled guilty to disorderly conduct.
One person asked me if I want my grandchild to have to witness sex acts in bathrooms. No, of course not, but that's not what happened here. If Craig had dropped trou or exposed himself for the purpose of sexual gratification in public (or the "Generic Suspect", if you will), then I would completely agree that a crime took place and the perp should get arrested. We don't normally arrest people because we assume they will commit a crime, and again, prostitution stings are the perfect example. They have to wait until an explicit agreement to exchange sex acts for money has been made to make the arrest; they can't do it for a mere flirtation with a john or a non-financial request to have sex.
Slate has a great debate on this same topic here. Scott Lemieux also wonders whether a crime actually got committed. Josh Marshall at TPM asks the same question. Instapundit has a great roundup, and graciously links to this post.