{"id":21620,"date":"2013-11-11T15:27:06","date_gmt":"2013-11-11T20:27:06","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=21620"},"modified":"2013-11-12T11:31:06","modified_gmt":"2013-11-12T16:31:06","slug":"lewd-and-lascivious-behavior-laws-a-milwaukee-story","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2013\/11\/lewd-and-lascivious-behavior-laws-a-milwaukee-story\/","title":{"rendered":"Lewd and Lascivious Behavior Laws: A Milwaukee Story"},"content":{"rendered":"

The Accused<\/strong><\/p>\n

Lee Erickson\u2019s 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\u2019s director since 1994. By all accounts, the group has flourished under his leadership. The MSO website<\/a> quotes music director Edo de Waart as saying: \u201cThe 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.\u201d Frequent guest conductor Nicholas McGegan has called the chorus \u201ca real gem,\u201d and Tom Strini of the ThirdCoast Digest referred to it as \u201cthe jewel in Milwaukee\u2019s cultural crown.\u201d<\/p>\n

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.<\/p>\n

<\/p>\n

The Alleged Offense<\/strong><\/p>\n

On November 5, the Milwaukee County Sheriff\u2019s Office announced that it had arrested eleven men, including Erickson, on accusations of lewd conduct in public parks. According to information<\/a> released by the Sheriff\u2019s Office, Erickson had followed an undercover deputy into a bathroom, exposed himself, and begun masturbating in front of the deputy.<\/p>\n

The Law<\/strong><\/p>\n

Section 944.20 of the Wisconsin Statutes prohibits \u201clewd and lascivious behavior.\u201d This provision makes it a Class A misdemeanor to \u201c[c]ommit an indecent act of sexual gratification with another with knowledge that they are in the presence of others,\u201d and to \u201c[p]ublicly and indecently expose[] genitals or pubic area.\u201d<\/p>\n

The criminalization of public sexual activity and indecent exposure, conduct that negatively affects quality of life, is perhaps unremarkable. Yet the chapter<\/a> in which Wisconsin\u2019s lewd and lascivious behavior provision is included offers a first hint of trouble. Titled \u201cCrimes Against Sexual Morality,\u201d it opens with the following statement of legislative intent:<\/p>\n

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.<\/p><\/blockquote>\n

The legislative intent provision was added<\/a> to the Wisconsin\u2019s criminal code in 1983 to obtain sufficient votes to repeal a \u201csexual perversion\u201d 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\u00a0message sent by this\u00a0instance of political\u00a0horse trading is clear: while we\u00a0may have to\u00a0tolerate private sodomy between consenting adults,\u00a0we still find\u00a0it 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.<\/p>\n

Hostility toward\u00a0gay sexuality is not just a historic oddity. As recently as 2006, the people of Wisconsin approved a constitutional amendment<\/a> that prohibits same-sex couples from marrying or even formalizing their relationships through civil unions or equivalent arrangements. To this day, therefore, in\u00a0this State same-sex couples are categorically excluded from the kind of sexual activity that has received the legislature\u2019s blessing.<\/p>\n

Enforcement<\/strong><\/p>\n

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<\/a> 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.<\/p>\n

Sex sting operations, which apparently have been conducted by the Milwaukee County Sheriff\u2019s 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 \u201ccruising\u201d\u2014going to public locations in search of casual sexual encounters with strangers\u2014appears 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\u00a0arguably<\/a>\u00a0amounts to unconstitutional\u00a0discrimination, at least if combined with a policy of ignoring offenses committed by opposite-sex couples.<\/p>\n

The Milwaukee County Sheriff\u2019s Office\u2019s practices, moreover, go beyond selective enforcement and cross into deliberate exploitation of anti-gay sentiments. In a television interview<\/a>, Sheriff David Clarke disclosed the heartbreaking detail that Erickson had begged the deputies\u00a0not to make his identity public,\u00a0because 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:<\/p>\n

One of the most effective deterrents that we have found over the years, is the public shaming and the public humiliation. That\u2019s why we put these names out.<\/p><\/blockquote>\n

What Sheriff Clarke left unsaid is why<\/em> the public release of the arrestees\u2019 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\u00a0would 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.<\/p>\n

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\u2019 primary appeal lies in the relative anonymity and secrecy\u00a0they afford. Far from being exhibitionist, these men go out of their way not to be seen. The Sheriff\u2019s Office\u2019s 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.<\/p>\n

The Employer<\/strong><\/p>\n

Within a day of Erickson\u2019s arrest, the MSO<\/a> suspended<\/a> him \u201cpending the completion of the investigation.\u201d Of course, one need not await the results of the \u201cinvestigation\u201d 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\u2019s rehearsal and concert space.<\/p>\n

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\u00a0built around a core of opposite-sex sexuality. Coming from an arts organization, it is rather perplexing.<\/p>\n

A Better Ending?<\/strong><\/p>\n

While the events of the past two weeks cannot be erased, fortunately some of their consequences can be reversed.\u00a0I sincerely hope the MSO allows Erickson to return to the work he has done so well for thirty-five years.<\/p>\n

The most shameful part of this story, to me, is the unabashed use of humiliation tactics in enforcing Wisconsin\u2019s lewd and lascivious behavior law. I urge the Milwaukee Sheriff\u2019s Office to follow the example of other police departments who have modified their enforcement\u00a0practices to address concerns of the LGBT community, sometimes as part of settlements with arrestees who filed<\/a> lawsuits<\/a> claiming unlawful discrimination.\u00a0I sympathize with the need to ensure that public spaces are safe and pleasant for everyone. But this goal can be accomplished<\/a>\u00a0without exploiting a deep-seated societal bias and its faithful companion, shame.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

The Accused Lee Erickson\u2019s 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 […]<\/p>\n","protected":false},"author":145,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[98,126,30,47,122,14,3],"tags":[],"class_list":["post-21620","post","type-post","status-publish","format-standard","hentry","category-civil-rights","category-constitutional-law","category-criminal-justice","category-milwaukee","category-public","category-criminal-law","category-wisconsin","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/21620","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/145"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=21620"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/21620\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=21620"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=21620"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=21620"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}