A couple of weeks ago, KALW’s Holly Kernan was reading the San Francisco Chronicle and there was an article about a U.C.gay Berkeley teacher being arrested for soliciting sex in a bathroom. The teacher is suing over it. Kernan found it strange that police would be doing sting operations in university bathrooms. It also seemed odd to her that consensual sex would be a crime.
KALW News put in a call to the U.C. Berkeley police to try to figure out what the public threat is. They have not responded to our requests yet, and we’re still really curious to understand why the police are staking out public restrooms. Bruce Nickerson joined Kernan in the studio to explain the case and its larger context. Nickerson is an attorney who specializes in gay civil rights, and he's bringing a class action suit against the U.C. Berkeley police.
HOLLY KERNAN: First off, just tell me what happened at U.C. Berkeley.
BRUCE NICKERSON: What happened at U.C. Berkley was as follows. The restroom in one of the major libraries gained a reputation, probably deserved, for being a place where gay persons met. The overwhelming majority of them, I believe, meet and then go elsewhere – some small, insignificant minority possibly engaging in conduct in closed bathroom stalls, which, while odious, is not illegal according to the California Supreme Court, several cases of which I argued.
KERNAN: People meet in the bathroom to hook up for sex?
NICKERSON: Yes. But intend to perform it elsewhere – in that it differs not a bit from say, a heterosexual singles bar where people go meet in a public place then go to a private place to finish the evening, or whatever. In this particular case, my client went there hoping to meet someone and go elsewhere and instead he met an undercover cop who sent signals, specifically foot-tapping, to indicate that he was there also for the same reason – to hook up with someone. My client and he reached an agreement to go elsewhere – or at least go outside and talk about where to go – and once outside, my client was arrested. I want to stress he engaged in no sexual conduct and his solicitation to go outside and talk about it is not an illegal solicitation.
KERNAN: He was arrested and booked on what charge?
NICKERSON: Soliciting a lewd act. No actually, correction – loitering around a toilet.
KERNAN: Loitering around a toilet?
NICKERSON: Intending to engage in or solicit a lewd act.
KERNAN: There are two things that I really don’t understand, which is why, when I read this case, I was just shocked. Why would consensual sex between two adults be a crime?
NICKERSON: It’s not. Except that, if it takes place in public, it is. Any sex. In other words, if, for example, two adults of whatever their orientation engage in sex on the sidewalk in the town square at high noon, that’s illegal. Clearly.
KERNAN: But that’s not what was happening.
NICKERSON: No. On the other hand, if the same two persons get in the car, and drive to the boondocks at two in the morning and do the same act it’s not, even though the boondocks may be a public place. But if it’s a place, this is important, where it is unlikely there will be third persons present – then it is legal.
KERNAN: Okay, so he’s arrested. We’re trying to talk to the U.C. Berkeley police to understand what public threat they think that there is here, because it’s not clear to me. But why are police officers even doing these stings?
NICKERSON: Because they are, I believe, prejudiced against gay persons. The best proof of that is they never, ever do that kind of a sting targeting non-monetary heterosexual sex, ever. I repeat, ever.
KERNAN: It sounds like we’re in 1969.
NICKERSON: We are, as far as the mental attitude of many police departments across the country.
KERNAN: So how common are these kinds of stings?
NICKERSON: In Northern California, they’re extremely rare, in large part because I have won several important cases both at the local and the Supreme Court level. But they occur, are still occurring, in Los Angeles and certain parts of Orange County under similar types of circumstances. That’s where most of the cases are at the present time. In Northern California this is a rarity and Berkeley is the first one I’ve got.
KERNAN: This man who was arrested is a lecturer at U.C. Berkeley. What have been the repercussions for his career?
NICKERSON: Well, I don’t wish to go into any details about him. I filed a matter under Doe and I really don’t want to make any more comments about him. I can only say that he is under extraordinary terror that, in fact, there may be repercussions.
KERNAN: Explain to us what happens next in your class action suit.
NICKERSON: Well, actually right now, we are in the process of exploring mediation. Neither side really wants to go to trial, I think. And we’re hoping to find a mediator where we’ll settle down and resolve it.
KERNAN: What other big picture things should we know about that are happening across the nation? I was really shocked to hear that this kind of a thing was even being prosecuted in this day and age, but it is. What else should we know about?
NICKERSON: What we need to know is that this is the last bastion of assault against gay rights. In other words, they can no longer arrest people in their bedrooms as they did in Lawrence v. Texas. They can’t anymore. And they couldn’t, by the way, in California since 1976 when the legislature decriminalized private consenting sex. But what they do is they twist the nation’s public sex and lewd conduct laws into criminalizing conduct by gays, that when straights do it, it’s ignored. That happens nationwide. In other words, every state has legitimate laws against public sex, consensual or whatever. We don’t want it being done on the sidewalks and scaring the horses as an English lady used to say. But the fact remains that if, for example, a cop comes across two guys in a dark area in a car getting it on, they’re apt to be arrested – again, not because the cop will say this was under a light where anyone could come by and be shocked, and they may win. Whereas if it’s two – a man and a woman – and there’s no suspicion of prostitution, the cop is more likely to say, “Oh, go elsewhere to do your thing.” And no arrest is made.
But what is really abominable isn’t that kind of discrimination – we can live with that. It’s where the police department deliberately pretends to be a decoy and enter into the cruising game for non-monetary adult sex. That’s what is unique. They never, ever enter into and create decoy arrests either for soliciting or engaging in heterosexual conduct that is only limited to homosexual conduct. And that is across the entire country.
There is a very good reason for that. If, for example, they were to go out and, using one of their female decoys who is good at generating prostitution arrests, and she were to offer a guy a freebie – “I’ll do it for free. All you got to do is agree to go with me to the car parked on this street.” Then the arrest would be made: soliciting a lewd act intending to perform in the car, a public place. But that person would take it to a jury and, there on the jury would be at least a couple of men and women who say, “There, but for the grace of God go I, this guy wasn’t talking about money. He was just trying to pick up a cute chick.” And they know that and they never ever make that arrest because they’d never get it to stick.
On the other hand, if they target gays, 90 percent of them would be so ashamed at the whole thing that they’ll plead out and it goes on – unless they contact me. And then I will persuade them to fight it, I will win the case in criminal court and then I’ll turn around and sue them.
KERNAN: Have you ever lost any cases?
NICKERSON: Not solicitation cases like this. Never. This was a pure solicitation case. Yes. I have lost some cases in which the gay persons were extremely negligent in their conduct. It was, uh, couldn’t you have been a little more careful as to where you parked that car? You follow what I mean? Or some of them have, do engage in conduct that is indefensible. So I’ll either plead those cases out. But solicitation, a pure solicitation case, for non-monetary sex – I’ve never lost.