New Rules Alter Line Drawn on Public Sex
March 2, 2001
By Andrea Estes
Massachusetts State Police will not automatically roust people meeting at
roadside rest areaseven 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 dont want to infringe upon anybodys
rights and I think this order will help clarify exactly what those rights
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.
"Were not making specific accusations," Bonauto said,
"but troopers need to be aware that just because they see something doesnt
mean its 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.
"Theres a difference between doing it on a pitchers mound in the
middle of the day and obviously taking steps to secret yourself," said
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 wont change anyones behavior. If someone is doing that in a
public place, a rest area, where passersby have access, it isnt right. And
this is not going to change any [troopers] approach to enforcing the
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 doesnt matter that the officer thinks they
may have unlawful intent. Its not the job of the State Police to be the
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, GLADs 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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