[This blog entry is one of 5 dealing with legal issues facing men who cruise for sex. Attorney's John Duran and Mark Foster who have a history of defending cruisers responded to a series of questions from Cruising for Sex in preparation for this blog. Additionally, Foster is moderating a forum to field questions on this topic. Follow this link to the forum: http://web.cruisingforsex.com/bb/forumdisplay.php?s=&forumid=167.]

Cruising for Sex: Is sexual activity in adult video arcades or theatres as vulnerable to police sting operations as similar activity in toilets or parks?

John Duran and Mark Foster: It’s a question of degree. Legally, they are still generally within the same purview as toilets and parks. Practically, enforcement varies greatly between various jurisdictions. Cruisers at a theatre and video arcade in one southwestern city endured high arrest and harassment rates, while in another, law enforcement maintained a complete “hands off” approach.

Vulnerability to police activity is extremely fluid. Different locales, and types of venues, are targeted at different times. Witness last year’s overblown police raid on a weekend night after-hours sex party at the Pride Gym in Albuquerque, ostensibly for liquor code violation, a venue previously (and since) left alone, in a generally tolerant city.

The safest place to have or look for sex is a private house. Next would be a bathhouse or designated sexclub. Generally, even when raided, like Pride Gym, or Phoenix’s Chute, the patrons are not arrested, just hassled and (in the case of Pride) humiliated. Least safe is a public area, such as a restroom. You never know who the guy is at the urinal next to you, pretending to masturbate.

Cruising for Sex: I have one more question on the previously covered subject of public toilets. When two or more men go behind a stall door in a public toilet and close the door, are they not considered to be engaging in private, consensual activity protected by law after that stall door is closed?

John Duran and Mark Foster: No. While courts have restricted to ability of law enforcement to engage in random spying activities (“innocent and guilty alike”) on closed toilet stalls, or use of clandestine methods, the toilet stall offers a limited zone of privacy. Lewd conduct can occur in any place open to the public or in public view. There is no particular magic about the presence or absence of a toilet stall door; rather, the inquiry is whether there is a reasonable expectation of privacy, and this must be an objective, not merely subjective expectation.

Cruising for Sex: Both of you have been involved in representing cruisers who have been arrested in California. Please tell me more about this work and how it is progressing.

John Duran and Mark Foster: We handle the bulk of the criminal defense work for Duran & Thomas, a community-based law firm doing business throughout southern California. They have been doing that type of work since the 1980s. A large percentage of this defense work has been representation of men prosecuted for lewd conduct, indecent exposure, and other cruising-related criminal activity. Over the years, we have represented hundreds of men accused of cruising-related offenses, often to very good result.

There have been many different twists and turns in the prosecution and handling of these types of cases over the years. Recently, John prevailed on a Murgia motion, believed to be the first ever granted in Los Angeles County, compelling law enforcement to produce records of an alleged unequal enforcement of lewd conduct laws against gay men.

The firm opened a new Palm Springs office last year and has since represented several men caught in two large public park restroom police stings in that area.

We have generally been successful in either getting charges dismissed or in mitigating the effects of these arrests. As a gay community-based law firm, we are extremely empathetic to our clients in these types of cases, and are acutely aware of the severity of their impact. Men often come to us in extreme emotional distress and are relieved to find knowledgeable and nonjudgmental representation. We are politically involved and have consistently lobbied for decriminalization or alternative sentencing for these types of consensual sex “crimes.”

Legal Issues Series:
Part 1 The Right to Be In a Public Park
Part 2 Your Rights In a Rest Area, Public Toilet, or Mall
Part 3 Your Rights When Encountering a Police Officer, Security Guard
Part 4 What Is Entrapment? How Not to Become a Victim To It
Part 5 Your Rights to Have Sex in Video Arcades and Theatres

CONTACT INFO FOR DURAN AND FOSTER:

Duran & Thomas, LLP
9200 Sunset Blvd., Penthouse 2
Los Angeles, CA 90069
(310) 276-5297
JDuran@DuranandThomas.com

Duran & Thomas, LLP
777 East Tahquitz Canyon Way, Suite Suite 200-58
Palm Springs, CA 92262
(760) 864-1400
MFoster@DuranandThomas.com