The rationale the NYPD has been using to arrest gay men cruising in adult book shops? It’s unconstitutional. So how come the police continue to intimidate these men, and courts continue to hear cases and issue punishments for a crime that is, in fact, not a crime at all?
It’s a great question, and Slate‘s Daniel Redman tries answering it. “In 1983,” he reminds us, “New York’s high court struck down as unconstitutional a 1960s-era provision that made it illegal to cruise—that is, to hit on someone in a public place. And yet in the 26 years since, on thousands of occasions, the New York Police Department has continued to enforce the defunct law, historically used to target gay people.”
The NYPD’s luck may have finally run out: One man arrested on prostitution charges isn’t letting the cops railroad him. He’s filed a civil liberties lawsuit. (Yes, there’s a difference between cruising and prostitution, but in this example, both are trumped up charges.)
But still, that doesn’t answer the question about how the NYPD continues going after gay men for something that isn’t illegal. “How did this miscarriage of justice, involving thousands, evade notice all this time?,” asks Redman. “One possible answer lies in the combination of intimidation and minimum deprivation of rights, at least in the short-run, which enforcement has entailed. People who were issued citations may have feared being exposed as gay or as out of line with the norms of sexual propriety. Many of these people paid the ticket, pled guilty by doing so, and—without a judge or defense lawyer to raise a question—tried to leave the whole thing behind them. Also, as the judge in the class action acknowledged, many of them probably pled guilty or accepted plea bargains without even knowing that the anti-cruising statute had been ruled unconstitutional.”
But here’s a very real reason why these prosecutions move forward: New York City wants them to. By issuing citations and arresting men in the city’s “seedy” shops, officials can build a case to revoke their business permits and, effectively, shut them down for being nuisances to the community.
It just happens to be unconstitutional.