Equal Protection at the Erotic Oasis: Examining Selective Prosecution Claims in Lewd Conduct Cases

• Author: Richard Tewksbury,Neva-Marie Polley
• Published date: 01 December 2010
• Date: 01 December 2010
• DOI: 10.1177/0734016810363800
• Subject Matter: Articles

Equal Protection at the Erotic

Oasis: Examining Selective

Prosecution Claims in Lewd

Conduct Cases

Neva-Marie Polley

1

, and Richard Tewksbury

1

Abstract

Drawing on data from legal documents from 127 cases of men arrested for public sexual activity in

known cruising locations (‘‘erotic oases’’), this article discusses the legal issue of selective

prosecution. As shown, the decoy sting operations used to apprehend men engaging in same-sex

sexual activities in public parks carry with them legal ramifications far beyond simply arresting and

prosecuting offenders. A focus on the issues of discriminatory purpose and discriminatory effect is

provided and discussion shows how each component of selective prosecution claims can (and did)

influence the legal challenges of arrests of men engaging in same-sex sexual conduct in erotic oases.

Keywords

selective prosecution, lewd conduct, erotic oasis, impersonal sex

Introduction

Public sexual activity arouses public attention for a variety of reasons, including, but not limited to,

the public’s desire to maintain public order and uphold standards of decency. There is a general

expectation that sexual activity is private and that one will not come upon persons engaging in sexual

activity at a public location.

Traditionally, American society has frowned upon public sexual activity as a violation of social

mores in mainstream American society. Despite society’s conservative and traditional sexual mores,

sexual conduct receives a great deal of public attention from the American public. One author noted,

now nearly 20 years ago, ‘‘The gratuitous zeal with which Americans view sexual conduct has

reached absurd proportions over the past ten years. Whether it be Rob Lowe, Jimmy Swaggart or

the alleged behaviors of Supreme Court Justice Clarence Thomas and presidential candidate Bill

Clinton, the American males’ sexual proclivities have come out of the closet and have sparked even

the most staid purveyors of American mores to swallow their personal embarrassment and jump into

the sordid public fray’’ (Kyle, 1992, p. 291).

1

Department of Justice Administration, University of Louisville, KY, USA

Corresponding Author:

Richard Tewksbury, Department of Justice Administration, University of Louisville, Louisville, KY 40292, USA

Email: tewks@louisville.edu

Criminal Justice Review

35(4) 453-471

ª2010 Georgia State University

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DOI: 10.1177/0734016810363800

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453

Two decades later, it is no surprise, nor secret, that the American public continues its fascination

with others’ sexual ‘‘misdeeds.’’ One need not dig very far into recent history to name only a few

recently publicized sex scandals—the breakdown of the marriage of John and Kate Makes Eight

due to infidelity; South Carolina Governor Mark Sandford’s tearful admission to sexual marital infi-

delity; former Presidential Candidate John Edwards’ admission to a sexual affair during his wife’s

battle with cancer; and, Senator Larry Craig’s being fined for alleged lewd behavior in an airport

restroom.

The public’s fascination and fear of sexual activity, which is viewed or labeled as deviant, is often

the impetus for a governmental response. In addition, while we are drawn to stories of marital

infidelity, it is only in response to certain truly ‘‘deviant’’ sexual acts that we demand government

intervention. Sexual deviancy, which involves force or lack of consent is strictly prohibited by law.

Consensual deviant sexual conduct between adults is also regulated to some extent. Prostitution is

illegal in most jurisdictions. In addition, while many states have since repealed such statutes, con-

sensual sodomy is illegal (even in the privacy of one’s own home) in many jurisdictions. Male same-

sex sexual conduct that takes place at public locales, commonly referred to as cruising at erotic

oases, has found itself in the limelight in recent years due to police decoy operations that are used

to enforce laws that prohibit public sexual activity.

This study analyzes 127 cases of criminal prosecution of persons who allegedly engaged in public

sexual conduct in Sacramento, California. These cases span a period of 10 years, all stemming from

incidents that took place between 1995 and 2005. Although these cases do not represent the entire

number of cases that were generated during this time period, they are believed to be representative of

these types of cases, which were regularly filed in Sacramento courts as a result of decoy operations

at erotic oases during this period of time.

Researchers have long recognized that law enforcement officers act as decoy cruisers at oases

(Humphreys, 1970). Unexamined, however, has been the method by which officers choose to

enforce the law at oases, prosecutors’ charging practices in relation to cases, which arise out of law

enforcement interventions at oases and the ultimate judicial disposition of the legal actions, which

are found in our courts as the result of cruising at erotic oases. This article examines one of these

issues, specifically focusing on cruisers’ claims that law enforcement officers unfairly and uncon-

stitutionally charged them with criminal offenses. The subjects claimed that the enforcement of pub-

lic sex laws against men engaging in same-sex public sexual conduct to the exclusion of men and

women who engage in opposite-sex public sexual conduct is constitutionally violative as it stems

not from the desire to address unlawful criminal conduct, but rather, as the result of a long-

standing practice of targeting same-sex sexual conduct as deviant and lascivious. The subjects also

claimed that prosecuting attorneys had a practice of offering more lenient case dispositions to per-

sons who were charged with violating the laws that prohibit public sexual conduct who were enga-

ging in unlawful opposite-sex sexual conduct, while not offering the same lenient case dispositions

to persons cited for engaging in same-sex sexual activities in public locations. The authors are not

privy to sufficient information and data to analyze the latter claim. Consequently, this study focuses

on the selective prosecution claims from the perspective of whether the decoy officer’s actions con-

stituted selective enforcement of the law and whether they arose to the level of violating constitu-

tional prohibitions against selective prosecution. When the term selective prosecution is used

throughout this study it refers to the overall legal concept of selective prosecution, which encom-

passes selective enforcement by law enforcement officers and which is subject to the same legal

analysis.

Decoy operations are not per se unconstitutional (see Shermon v. United States, 356 U.S. 369

[1958]; United States v. Russell, 411 U.S. 423 [1973]; and, Jacobson v. United States, 503 U.S.

540 [1992]). Entering public locations for the purpose of monitoring criminal conduct and appre-

hending persons who violate the law is a lawful law enforcement task. However, the targeting of

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