Last edited: December 08, 2004

New Rules Alter Line Drawn on Public Sex

Boston Globe, March 2, 2001

By Andrea Estes

Massachusetts State Police will not automatically roust people meeting at roadside rest areas—even people believed to be engaging in sexual activity, according to new guidelines disclosed yesterday.

Having sex in public places such as rest areas, beaches, and parks would not be considered illegal if the activity was adequately hidden from view, according to the two-page order.

The policy was issued to settle a lawsuit brought by Gay & Lesbian Advocates & Defenders on behalf of a gay man who was banned from highway rest stops on Cape Cod. Gays have long complained that they are harassed by police when they gather in public places, said Mary Bonauto, who represented GLAD in the case.

"This order, included in the [State Police] policy manual, is an incredibly positive first step," said Bonauto.

"This is major," said Captain Robert Bird, a State Police spokesman. "The State Police don’t want to infringe upon anybody’s rights and I think this order will help clarify exactly what those rights are."

The plaintiff in the case, called John Doe in court papers, had been convicted a year earlier for having sex with another man in the woods next to a Wareham rest stop.

"We’re not making specific accusations," Bonauto said, "but troopers need to be aware that just because they see something doesn’t mean it’s public activity and a criminal offense — far from it."

The new rules codify informal ones issued by State Police in October 1999, after Middlesex Superior Court Judge Wendie Gershengorn barred police from expelling the Cape man, who is 57, from rest areas.

Bird said yesterday that the new policy "instructs our troopers to follow the way the Supreme Judicial Court has interpreted the laws of the Commonwealth of Massachusetts."

The rules make clear that "socializing and expressions of affection" are not considered sexual conduct. And public sexual conduct is not illegal unless there is a "substantial risk" that the conduct will be observed by a casual passerby, the order says.

"There’s a difference between doing it on a pitcher’s mound in the middle of the day and obviously taking steps to secret yourself," said Bonauto.

However, one police source yesterday called the new policy "ludicrous" and predicted troopers will continue to roust gay people from parks and rest stops.

"These rules are lawyer psychobabble," said the source. "They won’t change anyone’s behavior. If someone is doing that in a public place, a rest area, where passersby have access, it isn’t right. And this is not going to change any [trooper’s] approach to enforcing the law."

The plaintiff, who could not be reached for comment, brought the suit after first complaining directly to State Police.

He claimed that one trooper in particular, Shawn Walsh, was harassing him. But Walsh was cleared after a review by Major John Kelley, commander of the Middleborough barracks, found that John Doe had "unlawful intent" even though he was doing nothing illegal.

Bonauto said yesterday that with the new guidelines, "The most important thing is that officers may not order someone to leave an area in the absence of criminal activity. It doesn’t matter that the officer thinks they may have unlawful intent. It’s not the job of the State Police to be the thought police."

State Police have taken a number of other steps to improve their relationship with gays and lesbians.

They are training all recruits under the new rules and offering training for all current officers. They have also agreed to set up a new complaint procedure, and hold regular meetings with members of GLAD.

"GLAD fully intends to identify those officers who refuse to treat gay people respectfully," said Gary Buseck, GLAD’s executive director. "People should feel free to call [GLAD hotlines] if they have been forced out of a public area simply because they are gay or are congregating with other people of the same sex."

"Gay people should be treated with the same respect as any other citizen," Bonauto said. "If that gay person is not acting unlawfully, then you should leave him or her alone," she said.

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