Disparate Results in New Jersey Lewdness Arrests
Gay
City News, July 14, 2005
By Duncan Osborne
 |
| The parking lot
at the Palisades’ State Line Lookout, a park where many gay men have
been arrested for lewdness in recent years. |
A New Jersey judge who has repeatedly handed out harsh
sentences to gay and bisexual men who were convicted of or pleaded guilty to
violating that state’s lewdness law in the Palisades Interstate Park gave a
heterosexual couple a far lighter sentence after they were convicted of
violating the same statute and other ordinances in the park.
The couple, who asked that their names not be used, were
arrested in the park, which stretches along the Hudson River from Fort Lee in
New Jersey to Bear Mountain in New York, just before midnight on February 2 by
Detective Thomas Rossi and Officer Roman Galloza, two members of the force
that patrols the park’s New Jersey section.
After a 90-minute trial on July 12, Steven J. Zaben, a
Municipal Court judge, found them guilty of lewdness, having open alcohol
containers in the park, and failing to turn on their car parking lights when
parked. Charges for littering and consuming alcohol in the park were
dismissed.
The court Zaben presides over hears low level cases and
traffic violations that are committed in the park
Zaben fined the man, 27, and the woman, 28, $750 each for
lewdness, $200 each for the open containers and the man was fined $54 for
failing to use his parking lights. He banned the couple from the park for two
years.
Last year, the New Jersey park police made at least 98
lewdness arrests in the park. The vast majority of those arrested were men.
Typically, the men were arrested after they exposed themselves and, in some
cases, briefly masturbated in front of a park police officer.
With roughly half of those cases completed, Zaben has
handed out sentences that include a roughly $1,000 fine, a five-day suspended
jail sentence, one or two years on probation, a two-year ban from the park
including using the highway that runs through the park and, in some cases,
court-supervised psychiatric counseling. All of the completed cases, except
one, have resulted in a guilty verdict or a guilty plea.
The heterosexual couple was not given a suspended jail
sentence, they were not put on probation and they were not required to receive
any counseling.
Unlike most of the men who have been arrested, the couple
was engaged in intercourse.
“I approached the vehicle,” Rossi said at the
couple’s trial. “I observed two people in the back seat... engaging in
sexual intercourse.”
The officers, both in plainclothes, inspected the car
after noting that it was in a park rest area without its parking lights on, a
violation of park rules.
Rossi said that the man’s “erect penis” and the
woman’s “lower private area” were clearly visible to him. He also saw a
Trojan condom wrapper on the ground outside the car, which led to the
littering charge, and that the man had a condom on his penis. There were four
beer bottles in the car, two empty and two unopened. Both officers testified
that the couple had alcohol on their breath.
During his testimony, Galloza said, “I got a good view
of the inside... I observed the defendants having intercourse... I could
observe their private parts.”
The New Jersey lewdness law makes no comment on where the
violation takes place or what the lewd act is, but requires that it be
“flagrantly lewd and offensive” and that the person “knows or reasonably
expects to be observed by another non-consenting person who would be affronted
or alarmed.”
The couple’s attorney, Joseph G. Monaghan, argued that
the couple had not violated the lewdness law because there were no other cars
nearby and the sex could only be seen by a person standing right next to their
car using a flashlight to see the interior.
“These two people, at midnight... had no reasonable
expectation that they would be observed by anyone else,” Monaghan said, and
he noted a 1976 case in which the New Jersey Supreme Court, citing that
reason, dismissed the lewdness charges against two men who were arrested for
having sex in a car in a parking lot during the afternoon.
Both officers testified that they did not need their
flashlights to observe the sex, though they did use them to see into the car.
Zaben rejected Monaghan’s argument.
“The fact is that this forum is not the forum that
these defendants should have selected for this act,” he said.
Steven Goldstein, head of Garden State Equality, a
statewide gay organization in New Jersey, objected to the clear differences in
the sentences. “The disparate sentencing that a straight couple got versus
what gay people are getting is outrageous,” he said. “We’ve said all
along that this was disparate treatment of gays versus straights and this
proves it.”
Gay groups are often squeamish about confronting lewdness
issues because the activity and arrests are seen as embarrassing to the wider
community. While they generally will not challenge such laws—though there
are exceptions—gay groups do insist that the laws be applied equally.
Typically, these laws are enforced largely against gay men, as Gay City News
investigations of such arrests in New York City over the past half dozen years
have shown.
“This is the inherent issue,” said Clarence Patton,
the acting executive director of the New York City Gay and Lesbian
Anti-Violence Project. “It’s been that way with so many public lewd
arrests and efforts targeting the gay community or gay activity... What
happened in the Palisades absolutely points out what we have all been saying
for a long time. Public lewdness laws are not necessarily the issue, but
unequal application of those laws is. If this doesn’t illustrate that issue
then I don’t know what will.”
Matt Foreman, executive director of the National Gay and
Lesbian Task Force, agreed.
“It’s so appalling,” he said. “This is proof
positive of the disparate way in which public lewdness laws are enforced
across the country.”
Lambda Legal said that the two staff attorneys who had
expertise on lewdness laws were on vacation and the agency could not comment.
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