This post (hailed by Matthew Yglesias) totally misses the mark on the Larry Craig case, arguing that it’s not illegal to solicit sex. Craig is being prosecuted out of homophobia.

Problem is, Craig is alleged to have solicited public sex. (The actual charge was the vague “disorderly conduct,” but the police report demonstrates that the sting was in response to reports of actual sexual activity in the restroom, not name and phone number exchanges. The signals Craig allegedly used were those of someone “wishing to engage in lewd conduct.”) It’s illegal, as it should be, to have sex in a public restroom.

Volokh Conspiracy has a similarly bad pro-Craig argument. Once Dale Carpenter spouts off a bunch of f***-the-police rhetoric (I’m fine with skepticism by all means, but “no presumption” that the officer isn’t lying? The cop wrote the report after finding out the suspect was a senator), he breaks out this argument:

A reasonable person faced with Craig’s alleged behavior would have moved his foot away and/or muttered a simple “no thanks” or “stop that,” which likely would have brought an end to it. A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn’t happen. In fact, the officer tapped his own foot in response, indicating the interest was mutual.

Again, the critic completely misrepresents the charge. The allegation isn’t that Craig was harassing the officer. The charge is that Craig was trying to have sex in a public place, regardless of whether his desired co-conspirator was receptive.

An update to Carpenter’s post quotes Ted Sampsell-Jones, who actually has a legal argument on why Craig should be in the clear:

Sex and masturbation count as lewd and lascivious acts. There is, however, some Minnesota case law suggesting that public restrooms aren’t “public places” once you close the door to your stall…Even if the completed act would be a crime, it’s doubtful that merely asking for sex in the restroom would be a crime…Minnesota, unlike some jurisdictions, does not have a general solicitation statute. Mere solicitation of a crime is not a crime.

They need to change the law, then. We certainly don’t want to make undercover cops have sex with suspects before arresting them.