Council’s assault on lewdness may ensnare gay men

Volume 2, Number 13 | The Weekly Newspaper of Chelsea | Dec. 28, 2007 - Jan. 3, 2008

"Support businesses and organizations that support Chelsea Now"

BY DUNCAN OSBORNE

In October of 2006, a woman had fallen asleep while riding the A train early in the morning. She awoke at Beach 116th Street in Rockaway Park, the train’s last stop, to see a man masturbating in front of her. He ejaculated on her “forehead, hand, and coat,” according to the criminal complaint in the case.

That is a common experience in the city.

Using the state open records law, this reporter obtained 359 criminal complaints from the city’s five district attorneys in which public lewdness, the state law that addresses this crime, was charged in 2006. That charge, sometimes with other crimes, was brought in at least 540 cases in that year, but some records were withheld and information in some of the complaints was blacked out.

In 2006, many women, some children, and even a few men reported to police that another person, almost always a man, exposed himself to them. This happened on streets, in parks and the subway, and inside buildings and businesses.

Earlier this year, City Councilman Peter F. Vallone, Jr., who represents part of Queens, introduced legislation that increased the maximum penalties for public lewdness from a $500 fine to $1,000 and three months to one year in jail.

“What I’m concerned about here is flashing,” Vallone said in a December 11 press conference at City Hall.

But his bill also exposed gay men who enjoy sex in public places to those increased penalties. Those men can be the targets of police crackdowns and some gay advocates argue that heterosexuals in so-called lover’s lanes are rarely arrested.

Advocates also charge that police will arrest men for lewdness who are merely cruising in such locations, as opposed to having sex, and rely on the men’s embarrassment to get them to plead guilty to lesser charges.

Recently, Vallone amended the bill, which has seven sponsors in the 51-member Council, to increase the penalties for “serial acts” of public lewdness.

“All we’re doing is using existing law and making it a worse crime if you do it twice in three years,” Vallone said. “The new amended bill is going to only make it an A misdemeanor if it occurs twice during a three-year period.”

The Council was expected to approve the legislation on December 19.

Certainly, the criminal complaints demonstrate that such “serial acts” happen, though they appear to be relatively rare.

Beginning in 2004, a Brooklyn man regularly parked near a middle school and exposed himself to girls ranging in age from 9 to 12 until one girl noted his license plate number and gave it to police. He was arrested in 2006 and faced charges of lewdness and endangering the welfare of a child in 13 separate instances. He pleaded guilty to endangering the welfare of a child in October of 2006 and was given three years probation.

This an extreme example of a behavior that ranges from crude comments and come-ons, to the many men who were charged with exposing themselves in the criminal complaints, to a second Brooklyn case in which a man exposed himself to a female co-worker and groped her beginning in late 2005 and into 2006 at a Fulton Street business. She had him arrested and he was charged with forcible touching, sexual abuse, and lewdness. That case is pending.

Some women are confronted by comments they find very threatening and in one case, the 2003 killing of Sakia Gunn in Newark, that fear proved justified. The 15-year-old African-American lesbian rebuffed the advances of Richard McCullough who then stabbed her to death. McCullough was sentenced to 20 years in prison in 2005.

In 2006, a group of seven lesbians, all from Newark, reacted violently to the crude advances of a man in the West Village and were arrested. Some of the seven knew Gunn and all knew her story. Three pleaded guilty and the other four went to trial. The four received prison terms that are seen by some in the queer community as excessively punitive.

But if the documented criminal complaints support the view that these types of crimes are common throughout the city, they also show that police continue to target gay and bisexual men who have sex in public for arrest.

In Queens, three members of a police robbery squad made 17 arrests for public lewdness in 2006, all in the same two men’s subway bathrooms and all at roughly the same times. This suggests an organized effort to target that crime in those locations.

In the Bronx, seven officers from the police department’s Transit District 11 filed 36 criminal complaints for public lewdness in 2006, all at the Fordham Road subway station. In some complaints, police arrested two and three men at a time.

In Manhattan, the same five officers in the Sixth Precinct, the West Village precinct, made 12 arrests for public lewdness in 2006 though in some cases the charges also included prostitution.

“Police officers respond to conditions identified by their commands in response to public complaints,” Paul J. Browne, the police department’s lead spokesman, wrote in an email. “It’s not discriminatory conduct on the part of police officers, but responsiveness by their commands to complaints by the public.”

Certainly, West Village residents have complained about prostitution in that neighborhood. Still, for advocates, these patterns suggest an ongoing effort by police to bust gay men.

“We’ve never had a problem with public lewdness laws, we’ve had a problem with public lewdness enforcement,” said Clarence Patton, executive director of the New York City Gay and Lesbian Anti-Violence Project (AVP). “We know that this is a mechanism that has been used historically and presently to target us as a community.”

Fewer than 10 of the 359 complaints show heterosexual couples being arrested for public sex and the disparity has long been a concern for gay groups.

“I think we’re always concerned when the public lewdness laws change to become more stringent because of the danger and the reality of unequal enforcement,” Patton said.

City Council Speaker Christine Quinn, an out lesbian who represents Chelsea and who once headed AVP, was presented with a balancing act with Vallone’s bill. How does she respond to what is widely seen as a serious problem without handing police another way to punish gay men?

The bill targets those who commit “publicly lewd actions in a way designed to offend and harm other New Yorkers. We believe the way the bill is now written does that in a very effective way,” Quinn said on December 11.

The bill “will not inadvertently give the police a tool that might at some point be used to target men who have sex with men,” Quinn said.