Lewd and Lascivious Behavior Laws: A Milwaukee Story

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Milwaukee, Public, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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The Accused

Lee Erickson’s bio attests to his national prominence. Among other things, he served on the Choral Panel of the National Endowment of the Arts and as dean of the American Guild of Organists. But in Milwaukee, he is best known as the conductor of the chorus of the Milwaukee Symphony Orchestra (MSO). Erickson was appointed associate director of the MSO Chorus in 1978, and he has served as the chorus’s director since 1994. By all accounts, the group has flourished under his leadership. The MSO website quotes music director Edo de Waart as saying: “The MSO has the good fortune of having a first-class volunteer chorus. With a chorus of this caliber, the options for performing great works in the repertoire are immense.” Frequent guest conductor Nicholas McGegan has called the chorus “a real gem,” and Tom Strini of the ThirdCoast Digest referred to it as “the jewel in Milwaukee’s cultural crown.”

If you type Erickson’s name into the Google search box, however, these achievements aren’t among the first results that appear on your screen.

The Alleged Offense

On November 5, the Milwaukee County Sheriff’s Office announced that it had arrested eleven men, including Erickson, on accusations of lewd conduct in public parks. According to information released by the Sheriff’s Office, Erickson had followed an undercover deputy into a bathroom, exposed himself, and begun masturbating in front of the deputy.

The Law

Section 944.20 of the Wisconsin Statutes prohibits “lewd and lascivious behavior.” This provision makes it a Class A misdemeanor to “[c]ommit an indecent act of sexual gratification with another with knowledge that they are in the presence of others,” and to “[p]ublicly and indecently expose[] genitals or pubic area.”

The criminalization of public sexual activity and indecent exposure, conduct that negatively affects quality of life, is perhaps unremarkable. Yet the chapter in which Wisconsin’s lewd and lascivious behavior provision is included offers a first hint of trouble. Titled “Crimes Against Sexual Morality,” it opens with the following statement of legislative intent:

The state recognizes that it has a duty to encourage high moral standards. Although the state does not regulate the private sexual activity of consenting adults, the state does not condone or encourage any form of sexual conduct outside the institution of marriage. Marriage is the foundation of family and society. Its stability is basic to morality and civilization, and of vital interest to society and this state.

The legislative intent provision was added to the Wisconsin’s criminal code in 1983 to obtain sufficient votes to repeal a “sexual perversion” law that criminalized sodomy. It may seem ironic that a statutory expression of support for (traditional) marriage paved the way for decriminalization of sodomy, but the message sent by this instance of political horse trading is clear: while we may have to tolerate private sodomy between consenting adults, we still find it distasteful. In sum, while the legislative intent provision on its face condemns all non-marital sex equally, its history suggests that sexual activity that is often associated with gay men is especially disfavored.

Hostility toward gay sexuality is not just a historic oddity. As recently as 2006, the people of Wisconsin approved a constitutional amendment that prohibits same-sex couples from marrying or even formalizing their relationships through civil unions or equivalent arrangements. To this day, therefore, in this State same-sex couples are categorically excluded from the kind of sexual activity that has received the legislature’s blessing.

Enforcement

Anti-gay biases manifest themselves in the enforcement of lewd and lascivious behavior laws in several ways. A first problem is selective enforcement. An amicus brief submitted by Lambda in a California appellate court cites testimony from police officers who frequently witnessed sexual activity involving opposite-sex couples in public areas but never arrested these offenders.

Sex sting operations, which apparently have been conducted by the Milwaukee County Sheriff’s Office for about a decade, target men who engage in gay sexual activity. While gay men have no monopoly on sexual activities in public locations, the practice known as “cruising”—going to public locations in search of casual sexual encounters with strangers—appears to be unique to men looking for sex with other men. Undercover officers in sting operations, who are trained to engage in conduct that signals an interest in hooking up, essentially infiltrate the cruising scene. Such profiling arguably amounts to unconstitutional discrimination, at least if combined with a policy of ignoring offenses committed by opposite-sex couples.

The Milwaukee County Sheriff’s Office’s practices, moreover, go beyond selective enforcement and cross into deliberate exploitation of anti-gay sentiments. In a television interview, Sheriff David Clarke disclosed the heartbreaking detail that Erickson had begged the deputies not to make his identity public, because he feared it would have consequences for his employment. Sheriff Clarke explained that the release of the mug shots and identities of arrestees is a key part of his strategy:

One of the most effective deterrents that we have found over the years, is the public shaming and the public humiliation. That’s why we put these names out.

What Sheriff Clarke left unsaid is why the public release of the arrestees’ identities is so shameful and humiliating. Is it just a consequence of being caught trolling for sex, regardless of sexual orientation? I suspect that the public would not react nearly as negatively to the release of the identity of a man arrested for lewd and lascivious behavior with a consenting woman, even if they were complete strangers who were meeting solely for the purpose of hooking up.

There is another, especially painful, reason why the release of identifying information is so shameful and humiliating for many of the men who get caught in undercover stings. Ask yourself why someone looking for a sexual encounter might go to a park as opposed to, say, a private club or bathhouse. For some, the reason may be money, proximity, or a preference for the outdoors. But for others, the parks’ primary appeal lies in the relative anonymity and secrecy they afford. Far from being exhibitionist, these men go out of their way not to be seen. The Sheriff’s Office’s reports leave little doubt that the eleven men who were arrested in the past two weeks in undercover operations were looking to have sex with other men. For men who are not openly gay or bisexual and who may even have marriages and families of the type celebrated by the Wisconsin legislature, release of this information can be devastating. Not only do they get paraded around in connection with an embarrassing crime; they are also being outed.

The Employer

Within a day of Erickson’s arrest, the MSO suspended him “pending the completion of the investigation.” Of course, one need not await the results of the “investigation” to know the worst possible outcome: that Erickson get convicted for starting to perform a sexual act, in front of a man he had every reason to believe was a consenting adult, in a public location far away from the MSO Chorus’s rehearsal and concert space.

The decision to suspend Erickson would have been understandable if he were employed by an organization devoted to the promotion of puritan sexual mores or family values built around a core of opposite-sex sexuality. Coming from an arts organization, it is rather perplexing.

A Better Ending?

While the events of the past two weeks cannot be erased, fortunately some of their consequences can be reversed. I sincerely hope the MSO allows Erickson to return to the work he has done so well for thirty-five years.

The most shameful part of this story, to me, is the unabashed use of humiliation tactics in enforcing Wisconsin’s lewd and lascivious behavior law. I urge the Milwaukee Sheriff’s Office to follow the example of other police departments who have modified their enforcement practices to address concerns of the LGBT community, sometimes as part of settlements with arrestees who filed lawsuits claiming unlawful discrimination. I sympathize with the need to ensure that public spaces are safe and pleasant for everyone. But this goal can be accomplished without exploiting a deep-seated societal bias and its faithful companion, shame.

 

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3 Responses to “Lewd and Lascivious Behavior Laws: A Milwaukee Story”

  1. Tom Kamenick Says:

    If the goal is to shame people specifically because the encounter was with another man, they’re not doing a very good job. I didn’t hear that the undercover cop was a man until reading this.

  2. Irene Ten Cate Says:

    Tom Kamenick: you are right that the Sheriff’s Office has not expressly identified the undercover deputy as a man. I have edited the post to reflect that.

    Sheriff Clarke, however, made clear that the sting operation was a response to complaints from male park visitors. See the following statement from the Sheriff in a television report: “We’ve had people who have been solicited — we’ve had people who have been, you know, touched and inappropriately grabbed — and I’m talking about men.” (Sheriff Clarke places some emphasis on the word “men.”)

    In addition, the following information is attributed to Sheriff Clarke: “The sheriff says the men engaged in this behavior are part of an underground culture that find out over the Internet which Parks to go to.” (Here, the emphasis is mine.)

    http://www.cbs58.com/news/local-news/MSO-230712401.html

  3. I am so tired of hearing that “Marriage is the foundation of family and society.” This is just another in a long line of insults that single – non gay – people have to live with. If marriage is so great, why do so many fail? To each their own, I say. Government has no business promoting marriage or dictating what adults do. Government intrusion into people’s lives is part of what is destabilizing this country.

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