Privacy, Property, and Public Sex


PRIVACY, PROPERTY, AND PUBLIC SEX

CARLOS A. BALL*

Making a queer world ... require[s] the development of kinds of
intimacy that bear no necessary relation to domestic space, to
kinship, to the couple form, to property, or to the nation. I

The Supreme Court in Lawrence v. Texas relied on a right to sexual
liberty to strike down a sodomy statute that criminalized same-sex sexual
conduct.2 In doing so, the Court limited that right in three ways: first, by
making it clear that the sex in question has to be consensual; 3 second, that it
must be engaged in by adults;4 and third, that it must take place in the home
(or in other similarly private places).5 In its analysis, the Court found it
relevant that the statute reached "the most private human conduct, sexual
behavior,.., in the most private of places, the home."6 The Court, in effect,
equated the home with privacy and privacy with liberty. "Liberty," the
Court noted, "protects the person from unwarranted government intrusions
into a dwelling or other private places." 7 The defendants, the Court added,

* Professor and Justice Frederick Lacey Scholar, Rutgers University School of Law
(Newark). I presented earlier versions of this Article at the annual meeting of the American
Philosophical Association (Western Division) held in San Francisco; at the joint annual
meeting of the American and Canadian Law and Society Associations held in Montreal; at
the Property Works-in-Progress Conference held at the University of Colorado School of
Law; and at the University of Pittsburgh School of Law. I thank all of the participants at
these events for their questions and comments. I would also like to thank Don Dripps, Kit
Kinports, and Andrew Leipold for their helpful suggestions. Finally, I wish to recognize the
assistance that Kris Harrison and Cynthia Helzner provided with the research for this article.

Lauren Berlant & Michael Warner, Sex in Public, 24 CRITICAL INQUIRY 547, 558
(1998).

2 539 U.S. 558, 562 (2003).

Id. at 578.

4d

I Id. at 567.

6 Id. (emphasis added).

7 Id. at 562.



Columbia Journal of Gender and Law

were free to "choose to enter upon [a sexual] relationship in the confines of
their homes and their own private lives and still retain their dignity as free
persons."8 The Court made clear, however, that if they had instead engaged
in "public [sexual] conduct," then the constitutional right to sexual liberty
would have been inapplicable. 9

The geographization of sexual liberty that is evident in Lawrence
began forty years earlier in Griswold v. Connecticut, the first case in which
the Court applied substantive due process doctrine to sexuality-related
issues.10 The Griswold Court, in analyzing the constitutionality of a law that
restricted access to contraceptives, drew a connection between the right of
married couples to make decisions affecting their sexual intimacy and the
spatial privacy afforded by the marital bedroom.'1 Several years later, in
Paris Adult Theater I v. Slaton, the Court rejected the idea that a right to
privacy prevented the government from regulating obscene materials shown
at a movie theater, noting that "it is unavailing to compare a theater, open to
the public for a fee, with the private home .... ,,2 The Court added that
"[t]he idea of a 'privacy' right and a place of public accommodation are, in
this context, mutually exclusive." 3

Under the Court's reasoning, then, there are certain sites, most
particularly the home, which are private and therefore implicate
considerations of privacy and sexual liberty. There are other sites, however,
which are public and therefore do not implicate those considerations.

8 Id. at 567 (emphasis added).

9 Id. at 578. The Lawrence Court did acknowledge in the opinion's opening
paragraph that "there are ... spheres of our lives and existence, outside of the home, where
the State should not be a dominant presence." Id. at 562. The Court's specific admonition,
later in the opinion, that public sexual conduct is not constitutionally protected, however,
makes it clear that, under the Court's view, whatever the liberty interests individuals might
enjoy outside the home, they do not include the right to engage in sexual conduct in public
places. Id. at 578.

'0 381 U.S. 479 (1965).

The Court in Griswold asked the following question: "Would we allow the
police to search the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship." Id. at 485-86. See also Lawrence, 539 U.S. at 564-65 (noting that Griswold
"described the protected interest as a right to privacy and placed emphasis on the marriage
relation and the protected space of the marriage bedroom.") (emphasis added).

12413 U.S. 49, 65 (1973).

13 Id. at 66-67.

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2008] Privacy, Property, and Public Sex

One way of understanding the link between the nature of certain
sites and a right to privacy under the Due Process Clause is through a
property-based right to exclude..Bruce Ackerman has noted that "[t]he core
of both 'privacy' and 'property' involves the same abstract right: the right
to exclude unwanted interference by third parties."' 4 The fact that the right
to exclude is at its strongest when it is exercised in the home, then, goes a
long way in explaining why both property law and privacy law privilege the
home in the ways they do.15 Indeed, as Ben Barros shows in his recent
article on the home as a legal concept, the law, reflecting broader cultural
norms, has long treated the home as a special zone where individuals are
permitted to exclude others in order to engage in conduct that is not only, as
an empirical matter, usually not observable by others, but that should also,

14 Bruce Ackerman, Liberating Abstraction, 59 U. CHI. L. REV. 317, 347 (1992).
See also Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) ("One of the main rights attaching
to property is the right to exclude others .. .and one who owns or lawfully possesses or
controls property will in all likelihood have a legitimate expectation of privacy by virtue of
this right to exclude.") (footnote omitted).

15 See, e.g., United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991)
("[T]he right to exclude is one of the most-if not the most-important components of a
person's privacy expectation in his home.").

There are important doctrinal links between property rights and privacy rights. The
substantive due process right to privacy can be traced back to two cases from the 1920's that
protected the interests of parents to make important decisions affecting their children. See
Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390,
399-400 (1923). These cases, as Radhika Rao notes, relied exclusively on citations to
Lochner v. New York, 198 U.S. 45 (1905) and its progeny, "clearly link[ing] parental rights
in children with property rights in a person's labor and occupation. The cases preserve the
privacy of the family by analogizing to other cases that prevent state interference with rights
of property." Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359,
419-20 (2000) (footnote omitted). Rao adds that the link between property and privacy is not
only one of form, but also of substance:

[T]he two rights display a comparable structure, incorporate many of the
same interests, and perform parallel functions.

... Both property and privacy revolve around such images of bounded
space, of protected sanctuaries or spheres of decentralized decision-
making. Property and privacy both draw upon these territorial
metaphors, constructing boundaries that define a realm of physical or
social immunity from state interference. The image of a protective
sphere surrounding the individual-whether physical or social-is thus
central to both rights.

Id. at 423-24 (footnotes omitted).



Columbia Journal of Gender and Law

as a normative matter, be beyond the reach of governmental regulation. 16 A
paradigmatic example of this latter point is Stanley v. Georgia, in which the
Supreme Court held that even if the government can criminalize the
possession of obscene materials outside of the home, it cannot do so when
those same materials are possessed inside of it. 17

The Court's geographization of sexual liberty has resulted in the
protection of sexual conduct that takes place in the home (and, presumably,
in analogous sites such as hotel rooms) while leaving unprotected sexual
conduct that occurs in public sites. As this Article explores, however, the
phenomenon of public sex problematizes the seemingly obvious connection
between the "nature" of a site (i.e., its privateness or publicness) and the
existence of cognizable privacy and liberty interests on the part of
individuals who engage in sex at that site. This Article, therefore, questions
whether the scope of the right to sexual liberty should be site-dependent. It
argues that what should ultimately matter in determining the right's ambit is
not where the sex takes place but whether the sexual actors' expectations of
privacy are reasonable. Although there is undoubtedly a link between these
two criteria, that link should not be so strong as to prevent sexual actors
from claiming a right to sexual liberty in certain geographies outside of
"dwelling[s] or other private places."' 18

The Article will proceed as follows: Part I begins with a brief
discussion of the critique, advanced by some queer theorists, of the
privileging of the home as a sexual site. Some queer theorists, as this Part
will explain, have criticized the domestication of sexuality that accompanies
that privileging, while simultaneously defending the rights of individuals to
engage in public sex.

Part II explores the public sex literature to explain how sexual
actors go about "privatizing" public sex sites. That literature shows that,
although it seems counterintuitive, it is not necessary for a particular
geography to be "private" in order for sexual actors to create privacy zones.

Part III argues that the scope of the right to sexual liberty under the
Due Process Clause should not be determined solely by the nature of the

16 See generally D. Benjamin Barros, Home as a Legal Concept, 46 SANTA CLARA

L. REv. 255 (2006) (discussing the cultural and legal development of the home as a protected
zone of "safety, autonomy, and privacy," and the limitations on these protections).

17 394 U.S. 557, 568 (1969) (holding that although "the States retain broad powers
to regulate obscenity, that power.., does not extend to mere possession by the individual in
the privacy of his own home.").

IS Lawrence v. Texas, 539 U.S. 558, 562 (2003).

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Privacy, Property, and Public Sex

site where sex takes place, in the same way that the right to privacy under
the Fourth Amendment is not limited only to certain specific geographic
sites such as the home. It further contends that this degeographization of the
right to sexual liberty, when coupled with the substantive protection
afforded to sexual conduct by the Supreme Court in Lawrence, should be
enough to provide some constitutional protections to public sex under
certain circumstances.

Finally, Part IV relies on the earlier discussion of public sex to
problematize essentialized and rigid understandings of the distinction
between so-called private and public sites. These understandings fail to
account for the ways in which human practices and activities give rise to
different ways of seeing and understanding particular geographies. In the
end, a private/public distinction that views the two categories as mutually
exclusive fails to reflect the multiplicity of meanings that accompany
human practices and activities in any given site.

I. THE QUEER CRITIQUE OF DOMESTICATED SEX AND ITS
CORRESPONDING DEFENSE OF PUBLIC SEX

Not surprisingly, the Supreme Court's opinion in Lawrence has
been criticized by conservative commentators who have assailed the Court
for limiting the discretion of legislators to enact laws based on majoritarian
understandings of sexual morality.1 9 Perhaps more surprisingly, the opinion
has also been the subject of considerable criticism from progressive
commentators. These critics, while agreeing with the result reached by the
Court, take issue with its reasoning, in particular its understanding of
liberty. The principal objections to that understanding are twofold. First,
some progressive commentators criticize the Court for emphasizing a
relational understanding of liberty, one that protects sexual intimacy when it
is part of ongoing relationships, but that ignores the liberty implications of
sexual conduct that takes place outside of those relationships.20 As the
argument goes, if the Supreme Court erred in placing too much emphasis on

19 See, e.g., Lino A. Graglia, Lawrence v. Texas: Our Philosopher-Kings Adopt

Libertarianism as our Official National Philosophy and Reject Traditional Morality as a
Basis for Law, 65 OHIO ST. L.J. 1139 (2004). See also Nelson Lund & John 0. McGinnis,
Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REv. 1555, 1584 (2004) (criticizing
the Court for failing to "entertain the possibility that state legislators could have a valid
reason for proscribing sodomy in general or homosexual sodomy in particular.").

20 See Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104

COLUM. L. REv., 1399, 1407-10 (2004); Teemu Ruskola, Gay Rights versus Queer Theory:
What is Left of Sodomy after Lawrence v. Texas, 23 SOCIAL TEXT, 235, 238-39 (2005).

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Columbia Journal of Gender and Law

the sexual act of sodomy at the expense of the relationships of lesbians and
gay men in upholding the constitutionality of sodomy statutes in Bowers v.
Hardwick,z' the Lawrence Court, in reversing Bowers, erred too far in the
other direction by focusing almost exclusively on relationships and almost
not at all on sex.22

Second, some commentators have criticized the Court for applying
a privatized and geographized understanding of liberty, one that prioritizes
and values sexual intimacy in the privacy of the home but leaves
unprotected sexual conduct that takes place elsewhere. 3 The concern here
is that limiting the scope of protected sexual liberty to sex in the home-
what can be thought of as the Court's "domestication" of sexual liberty-at
the expense of sexual liberty exercised at other sites, inevitably leads to
increased stigmatization and regulation of sex that takes place outside of the
home. 4

For the gay rights movement, Lawrence represented the
culmination of a twenty year effort to convince the courts to include gay
sexual intimacy within the scope of constitutional protection afforded to
other sexual conduct that takes place in the home.2 5 Many queer theorists,
however, are troubled by this effort to "domesticate" sexual liberty. From
this perspective, the home, as a sexual site, can serve as an extension of the

2 478 U.S. 186 (1986).

22 See Franke, supra note 20, at 1408 ("Just as the Court's earlier Bowers decision.

* . overdetermined gay men and lesbians in sexual terms, [Lawrence] at its heart
underdetermines, if not writes out entirely, their sexuality.") (footnote omitted); Ruskola,
supra note 20, at 239 ("[T]he crucial rhetorical limitation of Lawrence is precisely its
inability, or refusal, to imagine (legitimate) homosexual sex that does not take place in a
relationship and does not connote intimacy.").

23 See Franke, supra note 20, at 1403 ("The cabining of Lawrence's liberty is

accomplished through its geographization .... Repeatedly, Justice Kennedy territorializes
the fight at stake as a liberty to engage in certain conduct in private."). See also Libby Adler,
The Future of Sodomy, 32 FORDHAM URB. L. J. 197, 202 (2005) (suggesting that "Lawrence
errs on the side of protecting people from some sex at the cost of putting a lot of other sex at
risk of exclusion from constitutional protection.").

24 Franke, supra note 20, at 1415-16, ("Lawrence is a slam-dunk victory for a

politics that is exclusively devoted to creating safe zones for homo and hetero sex and/or
intimacy, while at the same time rendering all other zones more dangerous for nonnormative
sex.").

25 See WILLIAM B. RUBENSTEIN, CARLOS A. BALL & JANE S. SCHACTER, CASES AND

MATERIALS ON SEXUAL ORIENTATION AND THE LAW 148-64 (3d ed. 2008) (providing a
history of constitutional challenges to sodomy laws).

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2008] Privacy, Property, and Public Sex 7

closet, a place where sex is permitted (or tolerated) precisely because it is
26 Tentohidden from view. The notion that the only gay sex that is permissible is

that which takes place in the privacy of the bedroom reinforces the idea that
such sex is shameful and debasing. 27 When lesbians and gay men limit their
sexuality to sex with their partners in the privacy of their homes, the
argument goes, they replicate the traditional sexual practices and mores of
heterosexuals. The bedroom, then, acts as a sanitizing site through which
gay sex is cleansed and made more acceptable (i.e., made more like
heterosexual sex). In contrast, when gay sex takes place outside of the
privacy of the home, its publicness transforms it into queer sex. It becomes,
in other words, a form of transgressive sex that challenges heteronormative
values and practices. 28

26 See Franke, supra note 20, at 1411 ("Without more, Lawrence-like

decriminalization merely signals a public tolerance of the behavior, so long as it takes place
in private and between two consenting adults in a relationship.").

27 Leading queer theorist Michael Warner contends that all sex is inextricably

linked to shame because it always involves, at some level, a loss of control. He argues,
therefore, that queer people should seek not to make sex less shameful, but to undermine a
normative hierarchy of shame that seeks to cleanse certain forms of sex by stigmatizing
others. As he puts it,

[M]any people take shame and politics to be opposites. I think this is
wrong, because it commits us to the unrealizable utopia of a world
without shame .... Let's face it: shame isn't going to go away, where
the life of the body or of the sex is concerned. And that isn't the problem
in the first place. The problem is the hierarchy of respectability that
makes some pleasures or ways of living normative, and others either
forbidden or just inarticulate.. Through that hierarchy, some people (that
is queers) are made to pay the price for everyone else's shame. If people
were better about acknowledging and living with shame, they wouldn't
be so eager to abject others.

Annamarie Jagose, Queer World Making: Annamarie Jagose Interviews Michael Warner,
GENDERS, 2000, at 28, http://www.genders.org/g3 /g3 ljagose.html.

28 See David Bell, One-Handed Geographies: An Archaeology of Public Sex, in

QUEERS IN SPACE: COMMUNITIES, PUBLIC PLACES, SITES OF RESISTANCE 81, 82 (Gordon Brent
Ingram, et al. eds., 1997) [hereinafter QUEERS IN SPACE] ("When once the gay good citizen
comported him/herself with dignity and avoided public flamboyance, a queer citizen must be
aware of the strategic positioning of the sexed body ... as a site of resistance against the
dead weight of heteronormativity.") (internal citation and footnotes omitted); Wayne
Hoffman, Skipping the Life Fantastic: Coming ofAge in the Sexual Devolution, in POLICING
PUBLIC SEX: QUEER POLITICS AND THE FUTURE OF AIDS ACTIvISM 337, 349 (Dangerous
Bedfellows ed. 1996) [hereinafter POLICING PUBLIC SEX] ("[M]any radical activists in the
last few years have seen the political value of a public sexual culture that could help queers
visualize a fantastic new sexual order."); MICHAEL WARNER, THE TROUBLE WITH NORMAL:



8 Columbia Journal of Gender and Law [Vol. 18:1

Part of the transgressiveness of public (or non-domesticated) sex
lies in the fact that it is usually both anonymous and lacking in emotional
commitment. Some queer theorists are critical of the efforts by the gay
rights movement to "mainstream" gay sexuality by, for example, seeking
admission into the institution of marriage.29 From this queer theory
perspective, the struggle to gain marital recognition of same-sex
relationships is a misguided effort to normalize gay sexuality by creating
the illusion that all gay people want the same thing, in terms of sexual
intimacy, that ostensibly most straight people seek, that is, a life-long
commitment with one sexual partner. 30 The anonymity and lack of
emotional commitment that usually accompany public sex, then, become
for some an appealingly transgressive alternative to the assimilationist and
conservative goal of encouraging individuals, regardless of sexual
orientation, to marry.31

SEX POLITICS AND THE ETHICS OF QUEER LIFE 174 (2000) [hereinafter WARNER, THE

TROUBLE WITH NORMAL] ("The ability of sex in public places to reach ... a primordial
threshold [of disgust in others], at once arbitrary and unshakable, may . . . be for many
people part of its psychic and social appeal."); MICHAEL WARNER, PUBLICS AND
COUNTERPUBLICS 25 (2002) [hereinafter WARNER, PUBLICS AND COUNTERPUBLICS]

("[L]esbians and gay men have found that to challenge the norms of straight culture... is to
disturb deep and unwritten rules about the kinds of behavior and eroticism that are
appropriate to the public.").

29 See, e.g., WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 41-80

(criticizing the gay rights movement for seeking to normalize gay sexuality).

30 See Jagose, supra note 27, at 9 ("same-sex marriage advocates continually

appeal to the ideal of the long-term married couple as a shared norm."). For a general
discussion of the tension between liberal supporters of gay rights and queer theorists, see
Carlos A. Ball, Essentialism and Universalism in Gay Rights Philosophy: Liberalism Meets
Queer Theory, 26 LAW & Soc. INQUIRY 271, 271-81 (2001) (book review).

31 As David Bell notes, those who engage in public sex

[A]re widely constructed as perverted by a heterosexist and profoundly
vanilla society which can just about tolerate homosexuality provided it's
out of sight and provided the participants conform with heteronormative
constructions of love and sex; but the thought of people coming together
in contexts beyond heteronormative romanticism and masculinist
(hetero)sexuality, engaging in new forms of love and sex, is just too
much to tolerate.

David Bell, Perverse Dynamics, Sexual Citizenship and the Transformation of Intimacy, in
MAPPING DESIRE: GEOGRAPHIES OF SEXUALITY 304, 315 (David Bell & Gill Valentine eds.,
1995) [hereinafter MAPPING DESIRE] (citation omitted) (emphasis removed).



2008] Privacy, Property, and Public Sex

Queer theorists value public sex not only because of its
transgressiveness, but also because of its accessibility. Not everyone has a
bedroom to call her own, and gay people in particular may have a hard time
finding spaces in their family homes where they can have sex. 32 In contrast
to bedrooms, public sex sites are generally accessible by anyone who is
interested in the type of sex that takes place therein. 33

The accessibility of public sex, in turn, plays an important role in
transmitting knowledge about gay sexuality. Michael Warner notes that gay
people have a limited opportunity to learn about gay sex, and that the ability
to observe others engaging in that sex, whether in person or through
pornographic materials, helps to educate gay people sexually. Warner
points out that "[s]exual knowledges can be made cumulative," so that
when queers see others like themselves having sex, they come to realize
"that each touch, gesture, or sensation condenses lessons learned not only

It is important to note that while public sex can be viewed as the antithesis of
domesticated (and romantic) sex, that does not mean that it always lacks intimacy. Lauren
Berlant and Michael Warner, for example, contend that public sex can in fact be intimate in
the sense that it is framed by "a common language of self-cultivation, shared knowledge, and
the exchange of inwardness." Berlant & Warner, supra note 1, at 561.

32 See Lynda Johnston & Gill Valentine, Wherever I Lay My Girlfriend, That's My

Home: The Performance and Surveillance of Lesbian Identities in Domestic Environments,
in MAPPING DESIRE, supra note 31, at 99, 103 ("The home can ... be a site of tension for
women who identify as lesbians-a place where the ideal of the home as a place of security,
freedom and control meets the reality of the home as site where heterosexual family relations
act on and restrict the performance of a lesbian identity."); Scott Tucker, Gender, Fucking,
and Utopia: An Essay in Response to John Stoltenberg's Refusing to Be a Man, 27 Soc.
TEXT 3, 17 (1990) ("Gay people often have no freedom to be gay in the privacy of their
homes, due to family and neighborly pressures.").

33 See Jagose, supra note 27, at 30 ("The question of access is crucial for queers,
who rely on [distinct] places to encounter each other among strangers."). Clive Moore has
written the following about Australian "beats," that is, public places where men have sex
with other men:

The key characteristics of beats are easy access, non-"scene"
homosexual activity, and no admission charges. For many youths and
men who are just coming out, beats are where they find their first gay
sexual partners. Beats are integral to the sexual web binding together
both closeted and uncloseted homosexual men, as well as both
homosexual men and homosexually active nonhomosexual men, cutting
across all ages, classes, and races.

Clive Moore, Poofs in the Park: Documenting Gay "Beats" in Queensland, Australia, 2
GLQ: A J. OF LESBIAN & GAY STUD. 319,322 (1995).



Columbia Journal of Gender and Law

through one's own experience, but through the experience of others. 34 The
domestication of sexuality seeks to hide what Warner calls the "corporeal
publicness" of gay sex. 35 "The dominant culture of privacy," Warner tells
queers, "wants you to pretend that your sexuality sprang from your nature
alone and found expression solely with your mate, that sexual knowledges
neither circulate among others nor accumulate over time in a way that is

,,36transmissible. An important normative and political aspiration of the
"queer project," then, is to "support forms of affective, erotic, and personal
living that are public in the sense of accessible, available to memory, and
sustained through collective activity. 37

Warner has constructed a political vision of what he calls
"counterpublics"--that is, of publics (or groups of individuals) that are
"defined by their tension with a larger public." 38  One example of a
counterpublic is the sexual culture of lesbians and gay men, one that "is
understood to contravene the rules obtaining in the world at large, being
structured by alternative dispositions or protocols, making different
assumptions about what can be said or what goes without saying." 39 The
workings of a queer sexual counterpublic can help to challenge social
norms that seek to stigmatize certain erotic practices and shame those who
engage in them. As Warner writes,

[i]t is often thought, especially by outsiders, that the public
display of private matters is a debased narcissism, a collapse of

34 WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 178. See also PAT

CALIFIA, PUBLIC SEX: THE CULTURE OF RADICAL SEX 81 (1994) ("Seeing other people having
sex is reassuring and enlightening .... It's a direct and easy way to learn about sexuality, and
I wish it were more accessible, especially to women."); Jagose, supra note 27, at 34
("Queer kids growing up in isolated places around the country and around the world know, if
only vaguely, that somewhere things are different: somewhere they can go and find strangers
with whom they can share an intimate world.").

35 
WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 178.

36 Id. at 178-79. See also WARNER, PUBLICS AND COUNTERPUBLICS, supra note 28,

at 57-58 ("Homosexuals can exist in isolation; but gay people or queers exist by virtue of the
world they elaborate together, and gay or queer identity is always fundamentally inflected by
the nature of that world.").

37 Berlant & Warner, supra note 1, at 562. The "queer project" is Berlant and
Warner's phrase. Id.

3 8 
WARNER, PUBLICS AND COUNTERPUBLICS, supra note 28, at 56.

39 Id.

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Privacy, Property, and Public Sex

decorum, expressivity gone amok, the erosion of any distinction
between public and private. But in a counterpublic setting, such
display often has the aim of transformation. Styles of
embodiment are learned and cultivated, and the affects of shame
and disgust that surround them can be tested, in some cases
revalued.

4 0

Queer theorists like Warner seek simultaneously to problematize
the domestication of sexuality and to celebrate the phenomenon of public
sex.41 Although defending the rights of individuals to engage in public sex
is controversial and is likely to make many people uncomfortable, it is
important to note that advocates of public sex do not use that term to mean
sex that takes place anywhere, at any time, and in front of anybody; instead,
they mean sex that takes place in sites other than the home (as well as,
presumably, outside of analogous places such as hotel rooms).42 Examples
of public sex sites include specific public bathrooms in parks and rest stop
areas along highways, as well as commercial establishments (such as sex
clubs and adult movie theaters) that make available designated areas within
their facilities where individuals may engage in sexual conduct 3.4  As I
explain in the next section, those who engage in public sex frequently rely
on practices and norms, as well as on the physical configurations of the
chosen locations, to "privatize" public sites where sex takes place. 4

40 Id. at 62. Warner adds that a counterpublic

can work to elaborate new worlds of culture and social relations in which
gender and sexuality can be lived, including forms of intimate
association, vocabularies of affect, styles of embodiment, erotic
practices, and relations of care and pedagogy. It can therefore make
possible new forms of gendered or sexual citizenship--meaning active
participation in collective world making through publics of sex and
gender.

Id. at 57.

41 Queer theory promotes a vibrant public sex culture that rejects normative

hierarchies among different manifestations of sexualities. As such, it values not only public
sex, but also "pornography, . . . cruising, sex work, and other elements in a publicly
accessible sexual culture .... WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 173.

42 Id. ("'public sex' is public in the sense that it takes place outside of the

home .... ).

43 See infra notes 55-109 and accompanying text.

" See infra Part II.

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12 Columbia Journal of Gender and Law [Vol. 18:1

Importantly, the descriptive conclusion that sexual actors rely on
distinct mechanisms to privatize public sex sites is not inconsistent with the
normative aspects of the queer project as it relates to public sex. Warner, for
example, makes clear that he does not oppose the notion of privacy, nor
does he deny that there is "a kind of privacy--even intimacy-in the gay
male practice of public sex . . .,4' Instead, he is critical of the hypocrisy of
a "politics of privatization," 46 which seeks to condone (and even celebrate)
public manifestations of heterosexual sex while stigmatizing
nonheteronormative sex by confining it to the realm of the unseen and
unacknowledged and unspoken.47

45 WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 176-77. See also id. at
172 ("[a] public sexual culture is not just a civil liberty ... but a good thing, and queer
politics should make it a priority. This does not mean that I am arguing against privacy.").
David Bell makes a similar point when he notes that "[w]hile we might try to assert that a
private sphere would be unnecessary in the kinky city of queer play, we must at the same
time realise that the need for privacy remains a fundamental requirement for those whose
erotic configurations and tastes pass into forbidden zones." Bell, supra note 28, at 84
(footnotes omitted).

46 WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 172. See also Phil

Hubbard, Sex Zones: Intimacy, Citizenship and Public Space, 4 SEXUALITIES 51, 52 (2001)
("[I]t is because sexual minorities have been excluded from public view ... that the idea of
bringing private sexual fantasies into public view has often been written about as
representing a powerful political statement, a way that 'dissident' groups can challenge the
tyranny of oppressive heterosexuality.") (citation omitted).

47 As Warner puts it, "[i]mplicit in [the practices of public sex] is a challenge to the
dominant segregation of spaces, which allows a tacit heterosexuality to be endlessly visible
and publicly supported, while non-normative sexualities must be privatized to the point of
invisibility and inaccessibility." Jagose, supra note 27, at 30.

Some commentators have criticized relying on the concept of privacy as a means
to advance the interests of gay people. Michael Bronski, for example, argues that the
promotion of the right to privacy by the gay rights movement has failed to distinguish
sufficiently between privacy that is chosen by individuals and privacy that is imposed by
society. Bronski notes that efforts to retreat from the gaze of others can contribute to
invisibility and to strengthening (rather than to undermining) the closet. MICHAEL BRONSKI,

THE PLEASURE PRINCIPLE: SEX, BACKLASH, AND THE STRUGGLE FOR GAY FREEDOM 158-65
(1998). See also Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REv. 1431,
1456 (1992) ("From the perspective of gay men and lesbians ... the privacy paradigm has
always been both a tool and a trap, insofar as privacy has functionally served as a
cornerstone for the very structure of domination that the principle has been used to attack.").

Although the merits of this critique of the right to privacy are outside the scope of
this Article, it is worth noting that those who defend a right to public sex seem to deploy
privacy descriptively rather than normatively. Michael Warner, for example, does not
contend that sexual minorities are best protected through the enforcement of a right to
privacy. In fact, Warner's project, by problematizing the distinction between the private and



Privacy, Property, and Public Sex

II. THE PRIVATIZED GEOGRAPHIES OF PUBLIC SEX

There is no intrinsic relationship between sex on the one hand and
privacy and geography on the other. A truly radical understanding of sexual
liberty, for example, could seek to defend the rights of individuals to have
sex anywhere, at any time, and in front of anybody. There are, however, at
least three reasons why not even the most radical proponents of public sex
defend such an expansive understanding of sexual liberty. The first is that
those who do not want to observe the sex in question-individuals whom
we can refer to as "unwilling gazers"-have a legitimate interest in not
having sex thrust upon them. The second reason is that while a willing gaze
by consenting observers may enhance the pleasurable experience arising
from sex for some sexual actors, an unwilling gaze by hostile observers is
likely to have the opposite effect by creating tension and discomfort, thus
inhibiting or constraining the sexual actors. 48 Finally, unwilling gazes can
lead to the harassment of sexual actors by hostile gazers or by law
enforcement officials.49

It is not surprising, then, that queer theorists like Michael Warner
acknowledge that considerations of privacy and the need to exclude
outsiders are important components of public sex. Warner notes, for
example, that "[p]ublic sex is public in the sense that it takes place outside
the home, but it usually takes place in areas that have been chosen for their
seclusion, and like all sex involves extremely intimate and private

the public in matters of sexuality, calls into question the political advisability of relying on
the right to privacy as a way of protecting sexual minorities. This does not prevent him,
however, from recognizing, as a descriptive matter, that privacy is an important
consideration for those who choose to engage in public sex. See supra note 45 and
accompanying text.

48 See RICHARD MOHR, GAYS/JUSTICE: A STUDY OF ETHICS, SOCIETY, AND LAW 103

(1988) ("The whole process and nature of sex is interrupted and destroyed if penetrated by
the glance of an intruder-unless that glance itself becomes incorporated" into the process of
sexual arousal.); Stephen 0. Murray, Self Size and Observable Sex, in PUBLIC SEX/GAY
SPACE 157, 162 (William L. Leap ed., 1999) [hereinafter PUBLIC SEX/GAY SPACE] (noting
that some of those who engage in public sex seek privacy from "hostile observers" but not
from "excited observers").

49 See John Hollister, A Highway Rest Area as a Socially Reproducible Site, in
PUBLIC SEX/GAY SPACE, supra note 48, at 55, 60 (noting need of sexual actors in public sex
sites to protect themselves from harassers and from the police).

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14 Columbia Journal of Gender and Law [Vol. 18:1

associations .... When people speak of 'public sex,' the crudeness of the
term misleads us about what is at stake." 50

As this part of the Article explains, privacy is an exceedingly
important consideration for those who choose to engage in public sex. In
fact, the likelihood of privacy serves as the crucial factor that helps to
distinguish the vast number of public places that are not used as public sex
sites from the limited number that are. The important point is this: without
privacy, a public place cannot function as a public sex site.

It is crucial to distinguish, therefore, between the concept of privacy
and the characterization of a particular site as either private or public.
Whether a particular geography is deemed to be legally private depends
primarily on whether individuals have, or exercise, property-based rights to
exclude. As a practical matter, the home is "the most private of places, ' '51
largely because it is there that the right to exclude is at its strongest. Other
geographies may be private in similar ways. A non-domestic site where
individuals congregate for particular purposes will be deemed private if the

50 WARNER, THE TROUBLE WITH NORMAL, supra note 28, at 173. Warner elaborates
on this point as follows:

Even quite educated people seem to find it difficult to see how [public
sex] could mean anything other than sex in plain view, and therefore
exhibitionism .... Public sex in the usual sense ... retains an important
kind of privacy. People who seek out sex in the parks or in toilets or in
bathhouses do not usually do so indiscriminately and for the whole
world's involvement. There is a presumption of consent, and a
reasonable presumption of the exclusion of anyone who does not
consent. That's one reason why people seek out secluded and dark
places; for all their publicness, people in those places can reasonably
expect privacy.

Jagose, supra note 27, at 30.

David Bell reaches a similar conclusion when he notes that

[t]he term "public (homo) sex" is ... a contradictory one, for in some
ways public (homo)sex can be very private. In terms of the location of
the sex act ... nominally it is taking place in public space: the park, the
public toilet, the alley, the beach, the parking lot, the woods, the docks,
the street. But in terms of the identities of the participants, their
knowledge of each other, and the wider "public" knowledge of the
activities that go on in a particular setting, public (homo)sex can be very
private ....

Bell, supra note 31, at 306.

51 Lawrence v. Texas, 539 U.S. 558, 567 (2003).



Privacy, Property, and Public Sex

owners play an active gatekeeping function in determining who enters and
who does not. Indeed, the most important distinction between a "private
club" and a "place of public accommodation" is that owners (or members)
of the former, but not of the latter, are selective in exercising their rights to
exclude. 2 Places of public accommodation, while usually located on private
property, are not deemed private sites because owners generally choose not
to exercise their rights to exclude; instead, they broadly invite members of
the public to enter to purchase goods or services.5 3 Finally, at the other end
of the property spectrum from homes are open access areas (such as parks
and streets) where individuals have no legally enforceable rights to
exclude.54

Our intuition, which is clearly reflected in our terminology, leads us
to associate the concept of privacy with sites that are private. The
phenomenon of public sex, however, should lead us to question whether
that intuition is correct in every instance. The public sex literature, as I

52 See, e.g., Brounstein v. Am. Cat Fanciers Ass'n, 839 F. Supp. 1100, 1106

(D.N.J. 1993) (noting that "[t]he touchstone of the determination of whether a membership
organization is a 'place of public accommodation' is its selectivity in the admission of its
members."). The question of whether an establishment is "private" has been an important
one for courts in determining the scope of Lawrence. Courts have held that facilities where
sex occurs are places of public accommodation rather than private clubs when their owners
fail to be selective in who is permitted to enter the establishments. This designation, in turn,
renders inapplicable the constitutional right to sexual liberty recognized in Lawrence. See
832 Corp. v. Gloucester, 404 F. Supp. 2d 614, 623-25 (D.N.J. 2005) (holding that Lawrence
did not protect sexual conduct that took place in defendant's club, which was not private);
Fleck & Assocs., Inc. v. Phoenix, 356 F. Supp. 2d 1034, 1041 (D. Ariz. 2005), rev'd on
other grounds, 471 F.3d 1100 (9th Cir. 2006) ("Lawrence does not suggest that sexual
activities in a place of public accommodation are Constitutionally protected. Because [the
plaintiffs] club is not private, the sexual activities that take place there likewise are not
private."). See also Recreational Devs. of Phoenix, Inc., v. Phoenix, 83 F. Supp. 2d 1072,
1083-84 (D. Ariz. 1999) (holding that lack of meaningful selectivity by operators of
heterosexual sex club meant that it was not a private club); 31 West 21 St. Ass'n. v. Evening
of the Unusual, 480 N.Y.S.2d 816, 829 (N.Y. Civ. Ct. 1984) (holding that heterosexual SfM
establishment was not private because "anyone who appears at the front door ... and pays
the entrance fee is freely admitted to the Club.").

53 See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980) (noting that
owners of shopping center voluntarily limited their rights to exclude because facility was
"open to the public at large.").

54 See Daniel Fitzpatrick, Evolution and Chaos in Property Rights Systems: The
Third World Tragedy of Contested Access, 115 YALE L.J. 996, 1001 (2006) ("Conventional
property rights theory defines open access as a situation in which multiple privileges of use
exist in relation to a resource, but in which no one person or group has a right to exclude
others or make authoritative decisions concerning resource use.").

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16 Columbia Journal of Gender and Law [Vol. 18:1

explain below, suggests that it is possible for the concept of privacy to
apply in public sites, that is, in sites where individuals do not have, or
choose not to exercise, a legal right to exclude. Indeed, sexual actors in both
open access areas and in places of public accommodation frequently rely on
practices and norms, as well as on the sites' physical configurations, to
"privatize" those sites by successfully excluding unwilling gazers and other
potential intruders.

Public sex, then, is public in the sense that it takes place in sites that
our legal and cultural understandings deem to be public. Public sex,
however, is not (always) public in the sense that it lacks privacy.

A. Open Access Areas

The most extensive study of public sex remains the sociological
work conducted by Laud Humphreys forty years ago, published in his book
Tearoom Trade. Impersonal Sex in Public Places.55 In the late 1960's,
Humphreys spent several months observing, primarily in an unnamed
Midwestern city, the conduct and norms of men who had sex with other
men in public bathrooms, in particular those located in public parks.5 6

Humphreys concludes that whether a public bathroom serves as a

55 LAUD HUMPHREYS, TEAROOM TRADE: IMPERSONAL SEX IN PUBLIC PLACES (1970)

(Aldine Transactions ed. 2005). For biographical information on Humphreys's life and
career, see Glenn A. Goodwin et al., Laud Humphreys: A Pioneer in the Practice of Social
Science, 61 SoC. INQUIRY 139, 142-44 (1991).

The phenomenon of public sex remains primarily a male one. It has been
suggested that "the threat of sexual violence against all women makes 'lesbian' cruising less
common." Bell, supra note 31, at 317 n.3 (citation omitted). See also Gordon Brent Ingram,
et al., Lost in Space: Queer Theory and Community Activism at the Fin-de-Millnaire, in
QUEERS IN SPACE, supra note 28, at 3, 10 ("[S]evere, historically rooted misogyny has
blocked the development of female eroticized space."); Tucker, supra note 32, at 19 ("[I]f
the public world was not so threatening to all women, and so hostile to sexually independent
women in particular, who can say that more lesbians, too, would not take similar risks in
finding pleasure and partners?"). For essays on the relationship between different
geographies and lesbian sexuality, see FROM NOWHERE TO EVERYWHERE: LESBIAN
GEOGRAPHIES (Gill Valentine ed., 2000).

56 After Humphreys published his findings in the late 1960's, there were some who

questioned the ethics of his methodology for, among other things, violating the privacy of
those whom he observed. See Peter M. Nardi, Reclaiming the Importance of Laud
Humphreys' "Tearoom Trade: Impersonal Sex in Public Places," in PUBLIC SEX/GAY
SPACE, supra note 48, at 23, 23-24 (summarizing some of the ethical concerns raised by
Humphreys's work). For a sample of the debate engendered by Humphreys's research
methodology, see HUMPHREYS, supra note 55, at 175-232.



2008] Privacy, Property, and Public Sex 17

"tearoom," that is, whether it functions as a site where men can potentially
have anonymous sex with other men, depends on the extent to which the
site affords them privacy. 7 If a particular site can protect the sexual actors
from unwilling gazers and unwilling gazers from the sexual actors, then it
can be transformed from a mundane bathroom into a sexualized site.

Humphreys concludes that if a public bathroom is to function as a
public sex site, it has to be in an isolated location within the public park so
that those who visit the park for (other) recreational purposes are unlikely to
patronize it.58 In addition, as Humphreys puts it,

[t]he ideal setting for homosexual activity is a tearoom situated
on an island of grass, with roads close by on every side. The
getaway car is just a few steps away; children are not apt to
wander over from the playground; no one can surprise the
participants by walking in from the woods or from over a hill; it
is not likely that straight people will stop there at all.59

According to Humphreys, there are other factors that determine
whether a particular public bathroom will become a public sex site. It is
helpful, for example, if the facility in question has opaque windows,
preferably with a missing pane. This makes it possible to shield most of the
conduct that takes place inside from outside view, while simultaneously
allowing those on the inside to see (through the missing pane) who might be
approaching the site.60 Doors that lead into the restrooms which squeak or

57 The origin of the word tearoom is unknown, though Humphreys notes that
"British slang has used 'tea' to mean 'urine."' HUMPHREYS, supra note 55, at 2 n.2. The use
of the word to describe a public bathroom where men have sex with other men, while once
quite common, seems to be less so today.

" Id. at 7.

59 Id.

60 Id. at 12. "[O]ne of the first acts of participants after the spring opening or

renovation of a facility is to break out a few carefully selected panes so that insiders can see
who is approaching." Id. at 8. The sociologist Edward Delph, who conducted an
ethnographic study of public sex sites used by men in New York City during the 1970's, also
notes the importance of physical features in determining whether a particular bathroom is
used as a tearoom. He notes, for example, that "[t]oilets shielded by protective devices [i.e.,
stalls and doors] tend to be used for illicit sexual activity rather than those that have none. [In
addition,] the longer the hall preceding the toilet, or the more numerous the obstacles to the
main room of the convenience, the safer it becomes from surprise visitors." EDWARD W.
DELPH, THE SILENT COMMUNITY: PUBLIc HOMOSEXUAL ENCOUNTERS 66-67 (1978).



Columbia Journal of Gender and Law

stick also serve as site-specific devices that protect privacy by alerting the
sexual actors of the imminent arrival of visitors. 61

Furthermore, Humphreys notes that sexual actors in public sites
engage in practices that help to keep the sex undetected by unwilling
gazers. He describes, for example, how some individuals in the tearooms
play "the role of the lookout ('watchqueen' in the argot), a man who is
situated at the door or windows from which he may observe the means of
access to the restroom. When someone approaches, he coughs. He nods
when the coast is clear or if he recognizes an entering party as a regular." 62

Humphreys also describes how the sexual actors engage in a multi-
step process of collective action to make sure that sexual advances are made
only to those who have previously made it clear that they are interested. The
process often begins with the "approaching" stage, whereby a man drives
around the public bathroom in question a few times, parks immediately in
front of it, and then remains in the car for several minutes.63 This action
communicates sexual interest to those already in the restroom. As
Humphreys put it, "[s]traights do not wait; they stop, enter, urinate, and
leave. 6 4

The second step involves "positioning." Once inside the bathroom,
an interested sexual actor communicates that interest by where and how he

61 HUMPHREYS, supra note 55, at 8. Humphreys found that for at least some of the

sexual actors whom he observed, part of the appeal of public sex was the excitement
generated by the possibility of being caught. See id. at 151 ("My interviews indicate that
much of the effective value of the sexual release found in tearooms would be lost without the
consequentiality that lies beyond the payoff phase of the game.").

62 Id. at 27.

63 Id. at 60-61.

64 Id. at61. Humphreys also explains how the presence of unoccupied cars near the
restroom is an important signaling mechanism for those interested in using the location for
sexual purposes. Sexual actors "seldom enter a park restroom unless the presence of other
unoccupied cars indicates that potential partners are inside. A lone arriver will usually wait
in his auto until at least one other has parked nearby." Id. at 7. The possible presence of cars
driven by individuals who want to use the park for other purposes (such as to stroll or to play
sports) sends a confusing signal, which is one of the reasons why sexual actors prefer
isolated restrooms. See id.

There are other ways in which sexual actors can use automobiles to signal their
interest to potential participants in open access areas. For example, in Davis v. State, No.
CACR 06-934, 2007 WL 1207375, at *1 (Ark. App. Apr. 25, 2007), the police testified that
the turning on and off of an automobile's reverse lights "was a common signal used to
indicate that one wanted to meet another individual" for sexual purposes at a public park.

[Vol. 18:1



2008] Privacy, Property, and Public Sex 19

stands.65 If he "stand[s] comfortably back from the urinal, allowing his gaze
to shift from side to side or to the ceiling[,]" he lets others know of his
interest. 66 On the other hand, a man who stands close to the urinal and either
closes his eyes or looks down will be assumed not to be interested in sex. 67

"This strategy, followed by an early departure from the premises, is all that
those who wish to 'play it straight' need to know about the tearoom game.
If he makes the positioning move in that manner, no man should ever be
concerned about being propositioned, molested, or otherwise involved in
the action. 68

The third step entails "signaling," whereby the willing participant
"steps back a few inches from the urinal, so that his penis may be viewed
easily., 69 This is often followed by self-stimulation leading to an erection,
which signals to those in the room that the person is interested in sex.70 This
signaling is key because, as Humphreys puts it,

65 HUMPHREYS, supra note 55, at 61-63.

66 Id. at 62.

6 7 id.

6 1 Id. at 62.
6 91 d. at 64.

70 There are ways, of course, in which to signal sexual interest other than by

exposing sexual body parts, as the circumstances surrounding the recent arrest of United
States Senator Larry Craig (R-Id) in a Minneapolis airport bathroom shows. (For background
information about the arrest, see, e.g., Senator, Arrested in an Airport Bathroom, Pleads
Guilty, N.Y. TIMES, Aug. 28, 2007, at A 19.) According to the officer who arrested Senator
Craig, the latter, after entering a toilet stall occupied by the former, "tapped his right foot."
Motion to Withdraw Plea, Exhibit B at 1, Minnesota v. Craig, No. 27-CR-07-043231 (Minn.
Dist. Ct. Aug. 8, 2007) ("Lewd Conduct Narrative" completed by Minneapolis-St. Paul
Airport Police Officer Dave Karsnia, June 27, 2007). The officer "recognized this as a signal
used by persons wishing to engage in lewd conduct." Id. The officer then engaged in a form
of signaling of his own by "moving [his] foot up and down slowly," which communicated to
Craig that he was also (ostensibly) interested in sexual conduct. Id. For a comparison of the
Craig incident with Humphreys's findings several decades earlier regarding how sexual
actors use public bathrooms in ways that exclude nonconsenting parties, see Laura M.
MacDonald, Op-Ed., America's Toe-Tapping Menace, N.Y. TIMES, Sept. 2, 2007, § 4, at 10.

Edward Delph has catalogued the signaling mechanisms used by sexual actors in
public bathrooms, one of which involves the tapping of shoes. See DELPH, supra note 60, at
80 (noting how in public bathrooms, feet are used "to signal. The slightest shuffle of a shoe,
a move usually [made] toward the occupied commode, initiates communication."). Delph
also explains how sexual actors, when standing outside of the stalls, use bathroom mirrors to
communicate with each other. See id. at 68 (noting how mirrors "are ... used for indirect



Columbia Journal of Gender and Law

[n]o one will be "groped" or otherwise involved in the directly
sexual play of the tearooms unless he displays this sign [the
erection]. This touches on the rule of not forcing one's intentions
on another, and I have observed no exceptions to its use. On the
basis of extensive and systematic observation, I doubt the
veracity of any person (detective or otherwise) who claims to
have been "molested" in such a setting without first having
"given his consent" by showing an erection. 7 1

The last stage prior to sexual contact, which usually involves oral
sex,72 entails what Humphreys describes as the "contracting" step, that is,
"the expression of mutual consent." 73 This is done either by the "insertee"
reaching out to touch the exposed penis or by the "insertor" moving into a
stall where someone (usually an insertee) is already located.74 "If neither of
these moves is rejected, the contract is sealed., 75

It says something about the efficacy of the multi-step process
described by Humphreys, one that is aimed at communicating to others
present an interest in having sex, that of the hundreds of times that he saw
men approach each other in order to "seal the deal," the offer of sex was

visual communication. With eyes signaling via reflection, unwanted ... others located on the
sides miss the unfolding dialogue.").

71 HUMPHREYS, supra note 55, at 64.

72 Humphreys only observed individuals engaging in anal sex twice, and mutual

masturbation occasionally. Id. at 75.

73 Id. at 66.

74 Humphreys explains how insertees (i.e., those interested in giving oral sex)
signal their interest by positioning themselves inside the bathroom stalls and then waiting for
an insertor to signal his interest. Id. at 64-65.

75 Id. at 66. Humphreys also explains that when an unexpected visitor suddenly
enters the restroom, all sexual contact ceases. The sexual actors then adopt a wait and see
strategy to determine whether the new person is interested in sex or is only interested in
going to the bathroom. See id. at 78-80. See also DELPH, supra note 60, at 62 (noting that
when a non-sexual actor enters a public sex site, the sexual actors immediately begin to play
"roles that conform with the conventional and expected performances. Any unfolding sexual
drama is temporarily suspended until [the non-sexual actor] depart[s]."); Young v. State, 849
P.2d 336, 339 (Nev. 1993) (noting that visual surveillance of a public bathroom in a public
park by police proved to be "futile" because officers "could be seen and heard approaching
the stalls, thus enabling the individuals to discontinue their [sexual] activities and elude
detection.").

[Vol. 18:1



2008] Privacy, Property, and Public Sex 21

rejected only once.76 As Humphreys notes, "[b]y moving through gradual
stages, the actors have achieved enough silent communication to guarantee
mutuality. 77

Humphreys, then, describes a world in which those who use the
restrooms in question for their traditional uses co-exist with the sexual
actors with little interference from each other. The sexual actors use both
the physical characteristics of the sites and their own practices and norms to
effectively exclude unwilling gazers and other potential intruders.78

A more recent study by John Hollister of a highway rest stop that
functions as a sexual site confirms Humphreys's findings about how sexual
actors go about privatizing open access areas.79 Hollister explains, for
example, that where individuals park their automobiles (far from or near the
restroom facility) and where they stroll after they park (away from or
toward the facility) communicate sexual intentions, but only to the initiated.

76 HUMPHREYS, supra note 55, at 67. Humphreys observed about "two hundred

homosexual encounters in public restrooms...." Id. at 160.

77 Id. at 67. Frederick Desroches has studied data gathered by police departments
that have investigated public sex among men in five Canadian cities. See Frederick J.
Desroches, Tearoom Trade: A Research Update, 13 QUALITATIVE Soc. 39 (1990). He
concludes that "[p]olice observations in all five communities reveal that youth and children
are not involved in sex play, the action is noncoercive, and silence and impersonality are
maintained." Id. at 53.

78 Pat Califia has confirmed Humphreys's findings, concluding:

[M]y own conversations with tearoom cruisers indicate that it is highly
improbable that a family would encounter public sex at, say, a highway
rest stop unless they chose to picnic in a urinal. Sex probably is not
happening all over the rest stop, park, or beach. It's happening behind
the bathroom door. The people behind that door usually keep out a sharp
eye for intruders; I can't imagine anything more likely to cause everyone
to abdicate the throne than a nuclear family plus hamper, thermos,
folding lawn chairs, Polaroid camera, and large, nosy dog.

CALIFIA, supra note 34, at 77.

Califia adds that "[t]here is almost always some kind of physical barrier-some
bushes, a bathroom door, or a car-between the participants in public sex and the outside
world. This barrier screens out the uninitiated. If more than two people are present, one of
them usually acts as a lookout." Id. at 76. See also Richard R. Troiden, Homosexual
Encounters in a Highway Rest Stop, in SEXUAL DEVIANCE & SEXUAL DEVIANTS 211, 213
(Erich Goode & Richard R. Troiden eds., 1974) ("The sheltering bush provides a potential
occasion for the expression of intimacy in the midst of a very public, impersonal place.").

79 Hollister, supra note 49, at 58.



Columbia Journal of Gender and Law [Vol. 18:1

As Hollister puts it, "[c]ommunication takes place in relation to the space,
and the likely possibilities for the use of that space. Participants reach
conclusions as to a man's sexual availability based on how he approaches
and occupies the space, and they [in turn] use the space in ways that the
other man might recognize."80 He adds that "[t]he communication is rarely
so obvious or direct as to expose the situation to someone who is there by
accident, or who may respond violently."8'

As with Humphreys's tearooms, Hollister finds that the
private/sexual and public/nonsexual uses of the highway rest stop coexist
with little interference from each other: "Rest area cruisers take great care

80 Id. at 60. Hollister found a similar use of geography at two large urban parks.

The presence of single men in a wooded and secluded part of the park, when coupled with
the act of walking slowly, signaled an interest in sex to interested others: "I found I could
convey interest by entering one of the less ambiguous bushes, and convey lack of interest by
walking faster and along main paths .... Awareness of these zones enables cruisers to
separate fellow players from intruders of various kinds." Id. at 59.

Hollister's observations led him to note the crucial link between cruising for sex
and particular geographical spaces:

Cruising ... cannot be separated from the locations where it takes place.
Cruising as an activity may take place anywhere, but men will have a far
greater chance of success in a spot where a steady stream of other men
expect to find each other, and it is in these spots that men learn the
[cruising] techniques. Communication and consummation take place
using the available props. Use of conducive spaces is central to all
cruising.

Id. at 58 (emphasis added).

Aaron Betsky elaborates on the relationship between certain urban spaces and the
cruising by men that can take place therein. He notes that a cruising space has

certain definable characteristics. First, it needs conditions that in and of
themselves dissolve walls and other constraints. This means that most
cruising takes place either at night or inside dark, unused buildings. ...
Second, such a space must be labyrinthine. It must frustrate "normal" use
and detection by providing multiple barriers to intervention or
observation .... Third, cruising finds the edges of both the city as a
whole and buildings within the city. It exploits the points where truck
drivers and other transient sailors of the postmodern sea gather, the
places where the city breaks down into fields, and the stoops, porticos,
windows, and doorways of buildings.

AARON BETSKY, QUEER SPACE: ARCHITECTURE AND SAME-SEx DESIRE 148 (1997).

81 Hollister, supra note 49, at 60.



2008] Privacy, Property, and Public Sex

in camouflaging themselves. The few who don't are as effective in inducing
[other cruisers] to leave as a policeman .... [T]he sites I observed were
concealed from nonparticipants."

8 2

82 Id. at 63. Hollister adds that, at the rest stop he studied, "[s]everal groups

coexisted at the same location but rarely interacted or conflicted with each other: the passing
motorists who stopped quickly, used the facilities, and moved on, or slept for the night in
their cars; the truck drivers; and the men who sought to get off with each other." Id. at 56.

Maurice van Lieshout has written about his observations at a highway rest stop in
Holland where public sex between men regularly took place until it was closed down in
1991. See Maurice van Lieshout, Leather Nights in the Woods: Locating Male
Homosexuality and Sadomasochism in a Dutch Highway Rest Area, in QUEERS IN SPACE,
supra note 28, at 339. Lieshout's observations are consistent with Hollister's in terms of how
the sexual actors used the geographical site to cruise for sex with others who were similarly
interested. Lieshout reports that those who were interested in sex parked their vehicles at the
back of the rest area's parking lot, while "visitors who only came to 'rest' tended to have no
special preference in where they parked their cars. Their numbers were small, and most only
stayed there for a short time." Id. at 350. Most of the sexual contact took place in a wooded
area next to the parking lot:

During my observations, most men usually went to [a] gap in the fence
in order to enter the woods. After crossing [a] cycle track diagonally,
they arrived at the main access to the sexual zone .... This access point
is at the beginning of a wide and dark path where participants tried to
adjust to the darkness. Some cruising took place at the beginning of this
path-especially between new arrivals and men who seemed to be
leaving.

Id. at 350.

Farther into the woods, there was another path that had a short, very
dark, and tunnel-like entrance . . . . This path functioned as a second
exploration zone and the main artery of the cruising area on leather
nights .... During their stay in the [rest stop area], most men walked up
and down this path many times. It served as a conduit from more social
to explicitly sexual activities. It was the place in which to have a chat
with an acquaintance without losing opportunities to make more overtly
sexual contact. A passerby could easily show interest in a person who
was talking to someone else. If the attraction was mutual, the men
speaking would wind up their conversation in order for the initially
"cruised" man to follow the cruiser.

Id. at 351.

Lieshout notes how sexual interest was signaled primarily through eye contact. Id.
at 352-53. Once the interest was reciprocated, the individuals retreated to an area to the left
side of the path. Id. at 352. On the other side of the path was an area that was especially
wooded and dark.



24 Columbia Journal of Gender and Law [Vol. 18:1

The studies conducted by Humphreys and Hollister suggest that
public sexual geographies in open access areas can be defined and
delineated in particular ways that protect the privacy of the sexual actors.83

In this sense, they constitute sexual safety zones with distinct boundaries
that, like homes, rely on policing mechanisms to isolate the sexual actors
from the rest of the world.

The nature of those mechanisms varies according to the sexual site
in question. Privacy in the home is ultimately subject to protection through
legal means, and in particular through an enforceable right to exclude.8 4

Privacy at public sex sites located in open access areas, on the other hand, is
maintained not through state-sponsored means but primarily through self-
regulation, as the sexual actors themselves take the necessary steps to create
and maintain their privacy.85 In both the home and in public sex sites,

This area was used as a backroom or orgy room .... At night it is very
difficult to see anything there, and it was necessary to use other senses in
order to track other people. In trying to manoeuvre [sic] in the darkness,
often the best thing to do was to walk until you bumped another guy.
Hands grasping at you, sensual sounds, the smell of poppers [a drug
inhaled through the nose], and a vague visual sense of moving figures
made it clear you were not alone.

Id.

Lieshout's observations are consistent with what Edward Delph found in his
ethnographic study of male sexual actors in parks in New York City. Delph observed the
actors signaling sexual interest in each other through how and where they walked; eye
contact; the turning of heads; and standing in particular spots in relation to others. DELPH,
supra note 60, at 103.

83 Michael Clatts has conducted an ethnographic study of two public areas near the

famous Stonewall bar in New York City. (The riots that took place in Greenwich Village in
1969, which were in response to police harassment of Stonewall patrons, are generally
acknowledged to mark the birth of the gay rights movement). Michael C. Claus,
Ethnographic Observations of Men who Have Sex with Men in Public: Toward an Ecology
of Sexual Action, in PUBLIC SEx/GAY SPACE, supra note 48, at 141. Clatts found that some
men who meet at the bar sometimes retire to two nearby public areas. The first of these sites
is the entrance hallway of a brownstone building. The site is conducive to sexual conduct
because most of the residents in the building are elderly, and therefore unlikely to be out late
at night. Id. at 145. Another factor that helps to privatize the site is the existence of an outer
door, which unlike the inner door, does not require a key, and which has a one-way mirror
that allows those in the inside to view those who are approaching the building. The second
site is an alley that leads down to a parking garage. The alley is protected from view from the
street by a wall that runs along its entire length. Id.

84 See supra notes 14-17 and accompanying text.

85 See supra notes 55-83 and accompanying text.



2008] Privacy, Property, and Public Sex 25

however, the goal of the mechanisms is the same: to protect the privacy of
sexual actors from unwilling gazers and other potential intruders.

B. Places of Public Accommodation

So far, this Article has discussed public sex sites located in open
access areas. Some public sex sites, however, are located on private
property, in particular in places of public accommodation such as sex clubs,
bathhouses, and adult movie theaters. These commercial establishments
designate areas within their facilities where patrons can engage in sexual
conduct. Like tearooms and bedrooms, these sites constitute distinct sexual
geographies that function as sexual safety zones, protecting the privacy of
the sexual actors by shielding them from the unwilling (or unwanted) gazes
of outsiders.

In many ways, the importance of privacy in this second category of
public sex sites is best illustrated by the way in which public sex advocates
in the mid-1990's resisted efforts by New York City-ostensibly to prevent
the transmission of HIV-to regulate, monitor, and, in some cases, shut
down commercial sex establishments. 86 Interestingly, in this type of
controversy, it is public sex advocates who resist efforts to remove doors
from the booths and cubicles used by patrons to engage in sexual activity at
such establishments. 87 It is public sex advocates who demand that the

86 New York City's regulatory efforts aimed at commercial sex establishments and

other adult businesses in the 1990's, and the resistance to them, are explored in POLICING
PUBLIC SEX, supra note 28. Jim Eigo summarizes the criticism of the city's efforts to
aggressively police commercial sex establishments patronized by men interested in having
sex with other men as follows:

Some studies suggest that gay men are likelier to have safer sex in public
settings than in private. Unpublished research suggests gay men who
have risky sex have it both in private and public. This argues for keeping
sex spaces open: with bedrooms beyond reach, where engage gay men
who are having unsafe sex if not in public spaces?

Jim Eigo, NYC's War on Sex: Some Notes From the For (& the Aft), 3 STEAM: A Q. J. FOR
MEN 414, 419 (1995). See also Michael Warner, Why Gay Men are Having Risky Sex,
VILLAGE VOICE, Jan. 31, 1995, at 34 ("[N]ot a single study has shown that the second wave
of AIDS can be traced to sex clubs. Most risk happens in the bedroom, not the back room.").
For a critique of the city's efforts in the 1990's to close down or relocate adult business
through the enforcement of new zoning regulations, see Berlant & Warner, supra note 1, at
551-52; WARNER, THE TROUBLE wITH NORMAL, supra note 28, at 157-62.

87 Jay Blotcher, Sex Club Owners: The Fuck Suck Buck Stops Here, in POLICING
PUBLIC SEX, supra note 28, at 25, 40 (describing as "extreme" rules that would require the
removal of "doors to all cubicles [in sex establishments] to facilitate sex monitoring").



Columbia Journal of Gender and Law

privacy of sexual actors be respected, while it is government officials-in
arguing that the doors have to be removed in order for monitors to observe
whether unsafe sex is taking place-who demand that sex be observable by
others.88 It is public sex advocates, in other words, who want to make sex
more private and less public, while it is government officials who want to
make sex less private and more public (and presumably, in the process,
discourage the sex).

The privatized nature of some commercial sex establishments is
also apparent from a recent ethnographic study of a particular Washington,
D.C., gay adult bookstore conducted by William Leap. 89 The front section
of the bookstore offers visitors a variety of sexual products such as sex toys
and pornographic magazines and videos, but does not make available a
space for actual sexual conduct.90 Leap reports that individuals interested in
sex must make their way to a backroom in the store. That room "contains a
complex arrangement of dimly lit chambers, enclosed cubicles for one-on-
one erotic exchange, and open areas for group sex and other visible erotic
displays." 91 As the name "backroom" suggests, its location within the
commercial site

is very much intended as a private space and not as a public
location. To gain access to this area, the customer pays an

88 Califia has argued that when government officials ordered that adult bookstores

in Indianapolis and Los Angeles reduce the size of (or remove altogether) doors from
cubicles in sex establishments, they "transform[ed] private places into public ones." CALIFIA,

supra note 34, at 77. There is a surprisingly large number of cases that have addressed the
government's authority to require that operators of adult sex establishments remove doors to
cubicles and booths in their facilities. See, e.g., Mitchell v. Comm'n on Adult Entm't
Establishments, 10 F.3d 123 (3d Cir. 1993) (upholding statute requiring that adult
entertainment establishments leave viewing booths completely open on a side open to a
public room); Ellwest Stereo Theaters, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982)
(upholding ordinance requiring booths in adult movie theaters to be observable from the
outside of these booths); Stadium Book & Video v. Miami-Dade County, Nos. 04-20537-
CIV-JORDAN, 04-21156-CIV-JORDAN, 04-20553-CIV-JORDAN, 2006 WL 2374740
(S.D. Fla. July 31, 2006) (upholding constitutionality of ordinance requiring adult bookstores
to remove viewing booth doors); Doe v. Minneapolis, 693 F.Supp. 774, 781-82 (D. Minn.
1988) (same); see also Delgadillo v. Whitey, Inc., 2005 WL 477967 (Ca. Ct. App. Mar. 2,
2005) (upholding injunction requiring adult bookstore to remove doors and locks from
booths).

89 William L. Leap, Sex in "Private" Places: Gender, Erotics, and Detachment in

Two Urban Locales, in PUBLIC SEx/GAY SPACE, supra note 48, at 115.

90 Id. at 119.

9' Id. at 118.

[Vol. 18:1



2008] Privacy, Property, and Public Sex

entrance fee[, 9 2] . . . then passes through a turnstile and through
thick black curtains into the darkened area beyond. The further
into this area the customer goes, the greater the opportunities for
male-centered erotic exchange-and the greater the restrictions
on using verbal statements as a means for facilitating such
exchange. . . . [T]he seclusion, the darkness, the avoidance of
verbal communication-all of which signify private erotic spaces

in many segments of modem day America. 93

92 The amount of the fee "is reduced substantially if the customer has already

purchased an annual membership and displays his membership card." Id. at 129.

93 Id. at 119. Leap explains that the backroom actually consists of four different
locations: a small movie theater with benches; a room with wooden cubicles; a room with
freestanding movable blocks; and an area with vending machines, video games, and a
bathroom. Id. at 130. "Each area has its own physical composition, and each area is
associated with a different type of erotic activity and participation 'style."' Id. The movie
theater is understood to be an area "for individualized fantasy and for masturbation." Id.
While in the theater area, men sometimes signal interest by sitting next to each other. Id. If
the interest is mutual, the men proceed to the second room, where some sexual contact takes
place behind cubicle walls. Id. at 130-31. Sex also takes place in the third area, where
"darkness substitutes for the symbolic seclusion created by the cubicle walls." Id. at 131.
(Leap notes that in the third location, the men will sometimes move around "the freestanding
blocks to partition th[e] area in various ways." Id.). Finally, the fourth location-an area that
includes the vending machines and the bathroom-is understood to be a sex-free resting
zone. Id.

The sexual actors whom Leap interviewed told him that they liked the bookstore's
backroom as a sexual site because it

provides an enclosed, regulated, sex-positive environment, where men
are able to pursue male-centered erotic interests without fears of
discovery, harassment, or retaliation. Public parks, department store
restrooms, and highway rest stops do not offer the same amount of
protection, and invite interference from unwanted spectators, from the
police, and from queer-bashers.

Id. at 135.

Lieshout found similar sexual uses of backrooms in some of Amsterdam's leather
bars. These bars usually have three zones: "the actual bar in the front"; a "transitional area"
that has a billiard table and a television showing pornographic movies; and a backroom
where sex takes place. Lieshout, supra note 82, at 352. In the transitional area, there is less
talking than in the bar, as many "are looking intently at the crowd in order to find a sex
partner." Id. In fact, Lieshout points out that "[g]enerally speaking, the further one penetrates
these leather bars, the less talking takes place, the less lighting is installed, and the more
sexual activities can be expected." Id. at 352-53.



28 Columbia Journal of Gender and Law [Vol. 18:1

Leap also conducted an ethnographic study of a private health club
in Washington, D.C, where men have sex with other men. 94 As in the
bookstore, whether a specific location within the health club is used by
patrons for sexual purposes depends on the degree to which it affords
privacy to the sexual actors. Most sex takes place in the sauna,95 which like
the bookstore's backroom, can only be accessed after navigating the entire
length of the establishment.96 As in the bookstore's backroom, the sauna
accommodates little light or conversation.97 Unlike in the bookstore,
however, sex in the health club does take place in more than one location
within the facility. Importantly, all of these additional sexualized spaces
(such as alcoves in changing rooms and shower stalls) have physical
characteristics that protect sexual actors from unwilling gazers and other
intruders.98

94 Leap, supra note 89, at 117-22.

9 Id. at 122.

96 Leap describes the location of the sauna as follows:

[It] is located at the furthest point from the entrance to the health club.
To reach the sauna, a club member must check in at the entry desk, walk
past the aerobic studios, enter the men's locker room, walk past the
television room, disrobe and store clothing in a locker, go through the
room with the lavatories and toilets, pass the whirlpool, walk up three
steps, and turn left: only then does the club member face the sauna room
door.

Id. at 119.

97 Id.

98 See id. at 122 ("Locations for on-site erotic activities included the partially

enclosed alcoves in the changing rooms, which were created by the cul-de-sac placements of
the other lockers [and] the shower stalls, which were protected from outside viewing by
heavy cotton shower curtains.").

Although the men who have sex in the bookstore's backroom seem to identify as
gay, see id. at 129, many of those who have sex in the health club identify as straight, id. at
123-24. Leap suggests that these men, many of whom have wives or girlfriends, id. at 126,
may be interested in sex at "an '(officially) heterosexual' health club," because it permits
them to avoid being labeled as gay, id. at 116.

Similarly, a majority of the men whom Humphreys observed having sex in
restrooms in public parks, see supra notes 55-77 and accompanying text, "were married and
living with their wives." HUMPHREYS, supra note 55, at 105. For these men, the impersonal
and speedy nature of the sexual interactions was appealing, in part, because it helped them
"protect their family relationships." Id. at 105. See also Hollister, supra note 49, at 62
(noting that most of the men who cruised a highway rest stop in the early evening hours were



2008] Privacy, Property, and Public Sex

Ira Tattelman's description of a gay bathhouse in New York City
also helps us understand the ways in which a particular site's physical
characteristics, as well as the practices and norms of its users, serve to
privatize it.99 Immediately upon entering the bathhouse, there is a waiting
area consisting of an admissions desk and a cafe. On one side of the cafe's
counter, the men are fully clothed; on the other side, the men are in towels
or naked. The counter, in other words, serves as a threshold that begins the
process of separating the outside world from the inside.'00 After the

"husbands on their way home from work."). Frederick Desroches, in his study of police
records of arrests of men in public sex sites in five Canadian cities, found that fifty-eight
percent of the men were "known to be married and living with their wives." Desroches,
supra note 77, at 47.

99 Ira Tattelman, Speaking to the Gay Bathhouse: Communicating in Sexually
Charged Spaces, in PUBLIC SEx/GAY SPACE, supra note 48, at 71. Although the facility
described by Tattelman was the New Saint Marks Street bathhouse, which was closed by
New York City in the mid-1980's in response to the growing AIDS epidemic, there were, as
of the late 1990's, still dozens of gay bathhouses operating in the United States. Id. at 76.

Allan Bdrub6 has described the process through which "Turkish baths, Russian
baths, public baths, health resorts, and spas" in the late nineteenth and early twentieth
centuries were transformed into places where men could have sex with other men. Allan
B6rub6, The History of Gay Bathhouses, in POLICING PUBLIC SEX, supra note 28, at 187, 189.
Bathhouses, along with bars, were the first sites in the United States that became "zones
where it was safe to be gay. In a nation which has for generations mobilized its institutions
toward making gay people invisible, illegal, isolated, ignorant, and silent, gay baths and bars
became the first stages of a civil rights movement for gay people in the United States." Id. at
188. B6rub6 adds that

[f]or the gay community, gay bathhouses represent a major success in a
century-long struggle to overcome isolation and develop a sense of
community and pride in their sexuality, to gain their right to sexual
privacy, to win their right to associate with each other in public, and to
create 'safety zones' where gay men could be sexual and affectionate
with each other with a minimal threat of violence, blackmail, loss of
employment, arrest, imprisonment, and humiliation.

Id. See also CALIFIA, supra note 34, at 33 ("As the most visible gay institutions, [bathhouses]
made it possible for many men to experiment sexually with other men .... They [also]
taught gay men to see themselves as members of a common tribe with similar interests and
needs."); GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING
OF THE GAY MALE WORLD 1890-1940 207 (1994) ("The safest, most enduring, and one of the
most affirmative of the settings in which gay men gathered in the first half of the twentieth
century was the baths.").

100 As Tattelman notes, "[n]o one crosses the counter to get to the other side and no

one on the clothed side even considers undressing." Tattelman, supra note 99, at 78.



Columbia Journal of Gender and Law

entrance fee is paid, the visitor must register and hand over valuables. Once
these admissions requirements are satisfied, "[a] buzzer unlocks the heavy
inner security door that separates the space outside from the space
inside."1 °1

The upper floors of the bathhouse consist mostly of small rooms-
about fifty of them-all of which have doors. Patrons follow specific codes
of behavior in relation to these spaces-a closed door signals that those
inside do not want to be observed or joined, while an open door signifies a
possible invitation to come in. 102 "Once someone approaches the door, the
man in the room maintains the right to accept, reject, invite, or refuse access
to the room and to himself. The contacts are verified with an exchange of
eye signals.'

0 3

There is little verbal communication inside the bathhouse, including
in the sauna and steam rooms on the lower floors where sex also takes
place. 1°4 Communication is engaged largely through what Tattelman calls
"the language of the body." 10 5 This language "needs to be learned in order
to send a message and to ascertain whether the other individual is
interested. These gestures and signals guarantee that people who do not
want to have sex are not put into uncomfortable situations and that those
who participate do so willingly."' 0 6

Considering all of these studies together, it becomes clear that the
concept of privacy is a crucial consideration for individuals who engage in

101 Id. at 79.

102 See id. at 85 ("The closed door signals the room is for occupants only,

providing a degree of privacy and exclusivity to [the occupants'] activities. On occasion, the
men in the room will leave the door slightly ajar, attracting others to watch over the activity
or join in.").

103 Id.

104 See id. at 85-89 (describing the use of these rooms as sexual sites). There are
also locations within the bathhouse that are understood by patrons to be sex-free zones. See
id. at 90.

105 Id. at 73.

106 Id. See also Ira Tattelman, The Meaning at the Wall: Tracing the Gay

Bathhouse, in QUEERS IN SPACE, supra note 28, at 391, 403 (noting that in gay bathhouses,
"[b]ehavior was coded by location, posture, eye contact, and hand gestures."); Martin S.
Weinberg & Colin J. Williams, Gay Baths and the Social Organization of Impersonal Sex, in
GAY MEN: THE SOCIOLOGY OF MALE HOMOSEXUALITY 164, 173 (Martin P. Levine ed. 1979)
("At the baths, 'road maps' for transforming the intent into interaction are manifest in the
form of interactional rules involving body language and other nonverbal signals.").

[Vol. 18:1



2008] Privacy, Property, and Public Sex 31

sex in places of public accommodation, as it is for sexual actors in open
access areas.107 Sexual actors at all of these sites rely on the locales'
physical characteristics, as well as on their own practices and norms, to
privatize the sites. The actors thus constitute the sites as sexual safety zones
in ways that isolate them from the rest of the world.10 8 And they do so
informally, without relying on property-based rights to exclude.109

107 See supra notes 55-85 and accompanying text. In some ways, public sex,

whether in open access areas or in places of public accommodation, can be more private than
bedroom sex. Participants in bedroom sex almost always know more about their sexual
partners than do participants in public sex. Even when the bedroom sex is of the casual,
"one-night stand" variety, the visitor to the home, at the very least, knows where the sexual
partner lives. And obviously, when the bedroom sex is part of an ongoing relationship, the
parties know a great deal about each other. When sex is part of an ongoing relationship, in
other words, there is little privacy between the sexual actors.

In contrast, the anonymity that is usually a component of public sex means that
almost everything about the self remains unknown to sexual partners. Humphreys, for
example, found that tearoom sexual actors protected their anonymity (and therefore their
privacy) by abiding by a strong norm of silence. HUMPHREYS, supra note 55, at 12-13. See
also Leap, supra note 89, at 122 (noting that sexual acts observed in private health club
"[o]ften ... took place almost entirely in silence.") The expectation is that sexual acts will
take place without talking (either before, during, or after sex) and, as a result, without the
exchange of identifying information that is usually (though not always) shared in bedroom
sex. Sexual actors in public areas, then, frequently seek to protect their privacy not only from
the outside world, but also from each other.

108 Jeffrey Weeks has argued that public sex "involve[s] a redefinition of privacy."

JEFFREY WEEKS, SEXUALITY AND ITS DISCONTENTS: MEANINGS, MYTHS & MODERN

SEXUALITIES 222 (1985). The traditional understanding of privacy is constructed around
particular geographic sites, most notably the home. Public sex actors, on the other hand,
construct privacy through "a tacit but firm agreement about the conditions for entry and the
rules of appropriate behavior." Id.

109 In writing about commercial sex establishments, Lior Strahilevitz has suggested

that they constitute limited commons areas, which, in the spectrum of property regimes, lie
somewhere between private property and open access sites. Lior Jacob Strahilevitz, Consent,
Aesthetics, and the Boundaries of Sexual Privacy After Lawrence v. Texas, 54 DEPAUL L.
REV. 671, 684-85 (2005). In limited commons areas, he notes, "[a] collective permits its
members to use a resource freely but excludes outsiders from the property." Id. at 684. It
bears emphasizing, however, that while patrons of commercial sex establishments act as
"insiders" who seek to exclude "outsiders," see Carol M. Rose, The Several Futures of
Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L.
REV. 129, 155 (1998), they do not have a legally enforceable right to exclude such as the one
enjoyed by individuals while in their homes. If the patrons, then, are to have a
constitutionally-protected right to engage in sexual conduct while in those establishments, it
cannot be grounded in a property-based right to exclude. These issues are discussed in
greater detail in Part III, infra.



32 Columbia Journal of Gender and Law [Vol. 18:1

III. SEXUAL LIBERTY AND REASONABLE EXPECTATIONS OF
PRIVACY

The Supreme Court in Lawrence applied the following categorical
rule: Individuals have a right to sexual liberty as long as the sex takes place
in "a dwelling or other private places," but not when it takes place
elsewhere.110 Lower courts have followed this categorical rule in holding
that the right to sexual liberty under Lawrence does not apply, for example,
to sex that takes place in commercial establishments or in public
bathrooms. 11' In so holding, the courts have explained that Lawrence is
inapplicable because those sites are public rather than private. 112

Although there has not been, to my knowledge, polling conducted
on this issue, it is probably safe to surmise that most Americans would
disagree with the proposition that the scope of a constitutional right to
sexual liberty should encompass sexual conduct that takes place in the types

110 Lawrence v. Texas, 539 U.S. 558, 562 (2003).

111 See, e.g., 832 Corp., Inc. v. Gloucester, 404 F. Supp. 2d 614, 623 (D.N.J. 2005)
(holding that contrary to argument raised by owners of a nightclub where consensual sex
took place, "Lawrence did not recognize a broad right to engage in sexual conduct outside of
private settings."); Fleck & Assocs., Inc. v. Phoenix, 356 F. Supp. 2d 1034, 1041 (D.Ariz.
2005), rev'd on other grounds 471 F.3d 1100 (9th Cir. 2006) ("Lawrence does not suggest
that sexual activities in a place of public accommodation are Constitutionally protected.
Because [the plaintiffs] club is not private, the sexual activities that take place there likewise
are not private."); Singson v. Commonwealth, 621 S.E.2d 682, 689 (Va. Ct. App. 2005)
(holding that Lawrence did not apply in a case where defendant "approached a stranger in a
public restroom in a public department store during business hours . . . [b]ecause [his]
proposed conduct involved a public rather than private location."); Tjan v. Commonwealth,
621 S.E.2d 669, 672 (Va. Ct. App. 2005) (same).

112 See sources cited in previous footnote. In this sense, there is little difference

between the public sex cases that followed Lawrence and those that preceded it. See, e.g.,
State v. Davis, 623 So. 2d 622, 624 (Fla. Ct. App. 1993) (holding that defendant, charged
with engaging in lewd conduct at a commercial establishment, "did not have a reasonable
expectation of privacy at a place where the public could patronize."); United States v. Buck,
342 A.2d 48, 49 (D.C. 1975) ("any arguable right to privacy for persons engaging in [sexual]
conduct does not extend beyond the seclusion of the home."); United States v. McKean, 338
A.2d 439, 441 (D.C. 1975) ("Because of the public nature of the [health club] establishment
where the alleged [sexual] conduct took place, appellees may not claim a right to or
reasonable expectation of privacy in the constitutional sense of the word, regardless of
whether the cubicles in which the alleged acts occurred were in fact 'secluded."') (footnote
omitted); Herland v. District of Columbia, 182 A.2d 362, 363 (D.C. 1962) ("We have no
difficulty in finding that an unlocked men's washroom in a hotel reasonably describes a
place that is public or where an indecent act could be seen by others. The fact that the other
male participant was willingly engaged with appellant in an act of perversion does not
relieve appellant from guilt in committing such indecent act with him in public.").



Privacy, Property, and Public Sex

of geographical locations discussed in Part 11.113 The concern, especially
when it comes to open access areas, is that the sex will be observed, as Lior
Strahilevitz puts it, "by an adult who would prefer not to see the act in
question or a child who cannot consent effectively."'1 14

I do not dispute the notion that the state has a legitimate interest in
minimizing the chances that such unwilling observations will take place. It
is possible, however, to acknowledge this legitimate state interest without
having to conclude categorically, as the Court did in Lawrence, that the
right to sexual liberty under the Due Process Clause is inapplicable in
geographical sites outside of the home (and presumably outside of
analogous places such as hotel rooms). I propose, therefore, that courts,
rather than applying a site-dependent categorical rule in determining the
scope of the right to sexual liberty, instead assess the reasonableness of the
privacy expectations of the party claiming such a right. As Part III.A of this
Article explains, this is the standard that courts use when applying another
important constitutional provision that protects the privacy interests of
individuals-namely, the Fourth Amendment.

Before I delve into the discussion of Fourth Amendment doctrine, I
want to make it clear that I am not suggesting that the mere incorporation of
such doctrine into the area of substantive due process in matters related to
sexual conduct will, by itself, be enough to provide constitutional protection
to some instances of public sex. Instead, I rely on search and seizure
caselaw to make the point that whether a right to liberty/privacy exists
under principles of substantive due process in matters related to sexuality
should not be determined solely by the nature of the site where the sex takes
place, in the same way that a right to privacy under the Fourth Amendment
is not limited to certain specific geographic sites such as the home. My

113 One commentator has explained the antipathy felt by many towards public sex

as follows:

"Impersonal," "casual," or "anonymous" sexual contacts ... still have a
bad reputation among a majority of people. It is the kind of sex that
offends notions of romantic love, steady relationships, or long-term
commitment-ideas that are widespread in modem Western culture.
Many people consider "impersonal" sex as a way of compensating for a
lack of personal sex. Furthermore, it means practicing promiscuity. That
this kind of sex is pursued and enjoyed as an end in itself often seems
shocking. The fact that sexual acts often take place, not in private but in
public, adds greatly to state hostility and controversy.

Lieshout, supra note 82, at 342.

114 Strahilevitz, supra note 109, at 688.

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Columbia Journal of Gender and Law

contention, in other words, is that the right to sexual liberty under the Due
Process Clause should be degeographized to the same extent that the right
to privacy under the Fourth Amendment has been degeographized. As Part
III.B will argue, this degeographization of the right to sexual liberty, when
coupled with the substantive protection afforded to sexual conduct by the
Supreme Court in Lawrence, should be enough to provide some
constitutional protection to public sex. Part III.C explains why it is that the
expectations of privacy of those who engage in public sex can be reasonable
under certain circumstances.

A. The Degeographization of Privacy Under the Fourth Amendment:
Lessons for Substantive Due Process

The degeographization of the right to be free from unreasonable
searches and seizures can be traced to the Supreme Court's decision in Katz
v. United States.1 5 The issue in Katz was whether the government's
electronic surveillance of a phone booth constituted a search and seizure
under the Fourth Amendment. Both the government and the defendant
focused their arguments before the Court on whether the phone booth was a
"constitutionally protected area."'1 6 The Court, in rejecting that analytical
approach, concluded famously that "the Fourth Amendment protects
people, not places."' 17 It added that "what [a person] seeks to preserve as
private, even in an area accessible to the public, may be constitutionally
protected"' 18 and that "[wiherever a man may be, he is entitled to know that
he will remain free from unreasonable searches and seizures."'"19

Katz has been generally understood as standing for the proposition
that what ultimately matters under the Fourth Amendment is not where a
search takes place, but whether the defendant had a "reasonable expectation
of privacy., 120 Before Katz, it was necessary for defendants to have a

... 389 U.S. 347 (1967).

116 Id. at 351. The Court itself had looked to the possible existence of a
"constitutionally protected area" in a Fourth Amendment case only a few years earlier.
Silverman v. United States, 365 U.S. 505, 512 (1961).

".. Katz, 389 U.S. at 351.

118 Id. (emphasis added).

119 Id. at 359 (emphasis added).

120 This famous standard is found not in the majority opinion, but in Justice

Harlan's highly influential concurrence. Harlan explained that the Fourth Amendment is
implicated when "a person [has] exhibited an actual (subjective) expectation of privacy and.

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2008] Privacy, Property, and Public Sex 35

property-based right to exclude others before they would be permitted to
challenge the government's actions under the Fourth Amendment. Indeed,
prior to Katz, the Court had tightly linked Fourth Amendment protections to
considerations of property law, in particular to the law of trespass., 21 For
example, the Court, several decades before Katz, held that governmental
surveillance of a defendant's telephone conversation without an "actual
physical invasion of his house or curtilage" fell outside of the Amendment's
protection.1 22 The consensus among commentators is that the Court in Katz
departed from the earlier cases by grounding Fourth Amendment
jurisprudence in considerations of privacy rather than in those of
property.

123

This shift by the Court has by no means meant that the right to
exclude has become irrelevant to the Fourth Amendment analysis. Instead,
the fact that a defendant had a right to exclude others from the premises that
were searched is a factor-in many instances, a crucial one-in establishing
the reasonableness of her privacy expectations. As the Court has noted,

. that . . . expectation [is] one that society is prepared to recognize as 'reasonable."' Id. at
361 (Harlan, J., concurring).

121 See Kyllo v. United States, 533 U.S. 27, 31 (2001) ("[W]ell into the 20th

century, our Fourth Amendment jurisprudence was tied to common-law trespass.") (citations
omitted).

122 Olmstead v. United States, 277 U.S. 438, 466 (1928). See also Thomas K.

Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33
WAKE FOREST L. REV. 307, 312 (1998) ("[B]eginning with Olmstead v. United States, the
Court used property law to define constitutionally protected areas and limited the Fourth
Amendment inquiry to the protection of tangible items from physical invasions of real
property.") (footnotes omitted). In contrast, Justice Brandeis's dissent in Olmstead called for
a more robust understanding of the Fourth Amendment, one that rendered impermissible
"every unjustifiable intrusion by the government upon the privacy of the individual,
whatever the means employed .... Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting).

123 See, e.g., Clancy, supra note 122, at 327 ("Katz sought to extinguish inquiry

into constitutionally protected areas and to substitute privacy as the interest protected by the
amendment.") (footnotes omitted); Morgan Cloud, Pragmatism, Positivism, and Principles
in Fourth Amendment Theory, 41 UCLA L. REV. 199, 247 (1993) ("Until the 1960s the
Court generally relied upon the residue of the formalist linkage between property and
privacy interests in determining scope of the amendment."). In contrast, Orin Kerr argues
that "the basic contours of modern Fourth Amendment doctrine are largely keyed to property
law." Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths
and the Case for Caution, 102 MICH. L. REV. 801, 809 (2004). For a response to Professor
Kerr, see Sherry F. Colb, A World Without Privacy: Why Property Does not Define the
Limits of the Right Against Unreasonable Searches and Seizures, 102 MICH. L. REV. 889
(2004).



Columbia Journal of Gender and Law

"[o]ne of the main rights attaching to property is the right to exclude others,
and one who owns or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue of this right to
exclude."'

124

The fact that property law may provide individuals challenging
searches and seizures with rights to exclude others from the properties
subject to the searches can go a long way in establishing that their
expectations of privacy are reasonable. It is largely for this reason that the
Court, despite its pronouncement in Katz that the Fourth Amendment
"protects people, not places,"' 125 has continued to privilege the home in its
search and seizure jurisprudence. Indeed, when the home is involved, the
Court has in effect concluded that, except under narrow circumstances, 126 a
defendant's expectations of privacy are reasonable. 27 Although individuals
in their homes are subject to as much Fourth Amendment protection after
Katz as they were before, what ultimately drives the analysis after that case
is not the existence of a property-based right to exclude, but is instead the
reasonableness of the defendant's privacy expectations. 128

That the right to exclude is not dispositive for purposes of the
Fourth Amendment is evident from two lines of Supreme Court cases. The
first is the so-called open fields cases, where the Court has held that the

124 Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (citation omitted). See also

Oliver v. United States, 466 U.S. 170, 183 (1984) ("The existence of a property right is...
one element in determining whether expectations of privacy are legitimate.").

125 Katz, 389 U.S. at 351.

126 There is no reasonable expectation of privacy, for example, when the home

owner fails to shield objects or actions that can be observed from the street by the naked eye.
See Kyllo v. United States, 533 U.S. 27, 31 (2001) (noting the Fourth Amendment does not
render impermissible the "visual surveillance of a home") (citation omitted); California v.
Ciraolo, 476 U.S. 207, 213 (1986) ("The Fourth Amendment protection of the home has
never been extended to require law enforcement officers to shield their eyes when passing by
a home on public thoroughfares.").

127 See Kyllo, 533 U.S. at 34 (holding that the expectation of privacy regarding the

interior of homes is reasonable); Payton v. New York, 445 U.S. 573, 589 (1980) (noting that
in no setting "is the zone of privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual's home .... ); Id. at 601 (Powell, J.,
concurring) ( "the overriding respect for the sanctity of the home that has been embedded in
our traditions since the origins of the Republic.").

128 Rakas, 439 U.S. at 143 n.12 ("Expectations of privacy protected by the Fourth

Amendment, of course, need not be based on a common-law interest in real or personal
property, or on the invasion of such an interest.").

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Privacy, Property, and Public Sex

government may come onto uncultivated land belonging to the defendant
without violating the Fourth Amendment as long as officials do not
approach areas that are adjacent to the home. 129 Although the right of
property owners to exclude others applies to these private, uncultivated
lands, that is not enough for the government's actions to fall within the
Fourth Amendment's ambit. As the Court has put it, "in the case of open
fields, the general rights of property protected by the common law of
trespass have little or no relevance to the applicability of the Fourth
Amendment."'

' 30

The second line of cases involves the application of the
Amendment to government workplaces. The Court has held that
government employees under certain circumstances have reasonable
expectations of privacy in their places of work.' 31 Yet those employees do
not have property-based rights to exclude others from their work sites.' 32

To sum up, the following three propositions accurately reflect the
Court's contemporary Fourth Amendment jurisprudence that is relevant for
our purposes: first, whether a Fourth Amendment right exists depends on
the reasonableness of the defendant's expectations of privacy;' 33 second, the
right to exclude is neither necessary (as in the workplace cases) nor
sufficient (as in the open fields cases) to determine whether individuals
have rights under the Fourth Amendment; 34 and third, except under narrow
circumstances, the expectations of privacy held by individuals while in their
homes are reasonable.

35

129 Oliver v. United States, 466 U.S. 170, 176-78 (1984).

131 Id. at 183-84.

131 O'Connor v. Ortega, 480 U.S. 709, 716-17 (1987).

132 The lack of a necessary connection between a property-based right to exclude

and the scope of the Fourth Amendment is also clear from Minnesota v. Olson, 495 U.S. 91
(1990). The Court in Olson held that an overnight guest in a home enjoys a reasonable
expectation of privacy for purposes of the Amendment. Id. at 98. Under property principles,
however, a guest is a mere licensee who does not have the legal right to exclude others. See
id at 99 (noting that guests' expectations of privacy are reasonable even though it is hosts
"who [have] ultimate control of the house" and "who have the authority to exclude despite
the wishes of the guest ... ").

133 See supra notes 115-23 and accompanying text.

134 See supra notes 129-32 and accompanying text.

135 See supra notes 125-28 and accompanying text.

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Columbia Journal of Gender and Law

My proposal is that courts apply these same three propositions in
determining the scope of the right to sexual liberty under the Due Process
Clause. A right to sexual liberty, like the right to be free from unreasonable
searches and seizures under the Fourth Amendment, should protect people
and not places. Under my proposal, as under the Fourth Amendment, what
should ultimately matter is the reasonableness of the parties' privacy
expectations. In addition, under this approach, as under the Fourth
Amendment, the nature of the site where sex takes place, and more
particularly, the existence of a right to exclude, would be a factor in
assessing the reasonableness of a sexual actor's privacy expectations, but
not a dispositive one.

Although the standard I propose to assess the scope of the right to
sexual liberty under the Due Process Clause is the same as the standard for
determining when Fourth Amendment protections are implicated, the
finding of a constitutional violation would, under each provision, lead to
different results. The Fourth Amendment, of course, applies to the means
used by the government to investigate alleged criminal activity. If that
Amendment is violated, then the government is prohibited, under the
exclusionary rule, from introducing improperly gathered evidence at trial. 136

The Fourth Amendment, however, does not address the question of whether
the conduct that led to the underlying criminal charge is properly
proscribable. Yet, that is precisely the issue addressed by the substantive
due process analysis. The remainder of this Part therefore argues that when
sexual actors in public places can show that their expectations of privacy
were reasonable given the particular circumstances of their case, the
government should be precluded from charging them with a crime arising
from consensual private sexual activity in a public place, regardless of the
nature of the investigative methods and procedures used.137

136 See Mapp v. Ohio, 367 U.S. 643 (1961) (holding that evidence obtained

through unconstitutional search is inadmissible).

137 This Article focuses on the scope of the right to sexual liberty under the Due
Process Clause, as opposed to the right to be free from unreasonable searches and seizures
under the Fourth Amendment. On this latter point, Professor David Sklansky has recently
written a fascinating article tracing the adoption of the "reasonable expectation of privacy"
standard in Katz to earlier lower court decisions and scholarly writings discussing police
investigations of bathroom sex among men. David Alan Sklansky, "One Train May Hide
Another": Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U. C. DAVIS L.
REv. 875, 888-94 (2008). Sklansky argues that Katz helped to restrict what he calls the
"sorry practice" of police spying on gay men in toilet stalls. Id. at 879. In doing so, he
contends that Katz and its progeny played an important role in "giving aid and
encouragement to the fledgling movement for gay rights." Id.

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Privacy, Property, and Public Sex

B. Sex is Different

A skeptic of my efforts to analogize the right to sexual liberty under
the Due Process Clause to the right to be free from unreasonable searches
and seizures under the Fourth Amendment might point to the fact that the
Court has made it clear, in interpreting the latter provision, that the taking
of steps to shield an activity is not enough to create a reasonable (or
objective) expectation of privacy. 38 This is the case even if the party in
question has a subjective expectation of privacy. Thus, for example, even if
those who use a secluded area of a park to sell illegal drugs intend to
"privatize" that site by excluding unwilling gazers, society is not, for that
reason alone, required to recognize their subjective expectation of privacy
as reasonable. In all likelihood, therefore, a police officer who observes a
drug sale in that secluded part of the park would not, under the Fourth
Amendment, be precluded from testifying about that observation.

It is important to keep in mind, however, that the issue under the
Fourth Amendment, as already noted, is not whether the government has
the authority to proscribe certain conduct, but is instead whether its officials
used appropriate means in investigating the alleged criminal conduct.' 39 For
purposes of the Fourth Amendment, then, the fact that a defendant was
arrested for engaging in sexual conduct in a public place, for example, is no
different than if he was arrested in the same locale for selling illegal drugs.

In determining the scope of the substantive protection afforded by
the Due Process Clause, however, it matters very much that the conduct in
question involves consensual sex between adults. The Court in Lawrence,
after all, emphasized that the choice of sexual partners raises particularly
important considerations of liberty. 40 Indeed, the Court noted that there are
few choices that individuals make that are more personal and intimate than
those associated with "the right to make certain decisions regarding sexual

138 "The test of legitimacy is not whether the individual chooses to conceal

assertedly 'private' activity. Rather, the correct inquiry is whether the government's
intrusion infringes upon the personal and societal values protected by the Fourth
Amendment." Oliver v. United States, 466 U.S. 170, 182-83 (1984). In Oliver, the Court
rejected the notion "that steps taken to protect privacy [such as the posting of 'No
Trespassing' signs and the erecting of fences] establish that expectations of privacy in an
open field are legitimate." Id. at 182.

139 See supra note 136 and accompanying text.

140 Lawrence v. Texas, 539 U.S. 558, 562 (2003) ("Liberty presumes an autonomy

of self that includes freedom of thought, belief, expression, and certain intimate conduct. The
instant case involves liberty both in its spatial and in its more transcendent dimensions.").

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40 Columbia Journal of Gender and Law [Vol. 18:1

conduct." 141 It is inconsistent with the importance of the liberty interests at
stake in matters related to sexual intimacy and conduct to conclude that

141 Id. at 565. In emphasizing the liberty implications that inhere in the choice of
sexual partners, the Court quoted with approval the following language from Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992):

These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.

Lawrence, 539 U.S. at 574.

As already noted, some commentators have criticized the Lawrence Court for
emphasizing a relational understanding of sexual liberty, one that protects sexual intimacy
when it is part of ongoing relationships but ignores the liberty implications of sexual conduct
that takes place outside of those relationships. See supra notes 20-22 and accompanying text.
I have elsewhere noted the Court's emphasis on the relational components of sexual liberty.
See Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in
the Aftermath of Lawrence v. Texas, 84 MINN. L. REV. 1184. 1211-14 (2004). 1 do not,
however, read Lawrence as standing for the proposition that only sexual liberty that is part of
ongoing relationships is constitutionally protected. Although the Court may have assumed
that the defendants had a more committed relationship than they actually did, see Ruskola,
supra note 20, at 242 (noting that the defendants in Lawrence "apparently [had] just a one-
night stand"), the holding of the case was not limited to sexual conduct that takes place
within an ongoing relationship. See Mark Strasser, Lawrence, Mill, and Same-Sex
Relationships: On Values, Valuing, and the Constitution, 15 S. CAL. INTERDISC. L.J. 285, 293
n.51 (2006) (although "[t]he Lawrence Court realized that sodomitical relations might take
place in the context of a more enduring relationship[,] ... the opinion was not predicated on
whether Lawrence and Garner had [such] a . . . relationship .... "). See also Francisco
Valdes, Anomalies, Warts and All: Four Score of Liberty, Privacy, and Equality, 65 OHIO
ST. L.J. 1341, 1398 (2004) ("Lawrence does more than simply validate same-sex
relationships that mimic traditional 'marriages.' Instead, Lawrence recognizes, first, the
central role that sexual desires and intimacies play in the development of individual
personalities and, second, the importance of sexual experimentation and choice in
individuals' efforts to realize and secure their sense of self.").

Furthermore, it is important to keep in mind that much of the discussion of
relationships in Lawrence is in the section of the opinion where the Court explains why
Bowers v. Hardwick, 478 U.S. 186 (1986), was constitutionally flawed. Lawrence, 539 U.S.
at 566-67. The Lawrence Court was appropriately critical of the Hardwick Court for
claiming that sodomy regulations only impacted the ability of individuals to have sex. See id.
at 567 ("To say that the issue in Bowers was simply the right to engage in certain sexual
conduct demeans the claim the individual put forward, just as it would demean a married
couple were it to be said marriage is simply about the right to have sexual intercourse.").
That criticism, however, does not translate into the legal or moral proposition that the right to



Privacy, Property, and Public Sex

those interests become wholly inapplicable when individuals choose to have
sex outside of"a dwelling or other private places. 1 42

The crucial point is this: most criminal activity is proscribed
regardless of where it takes place. 143 Thus, the Due Process Clause does not
circumscribe, for example, the authority of the state to criminalize the
selling of illegal drugs, regardless of whether the sale takes place on a street
comer or in the privacy of a home. After Lawrence, however, the Due
Process Clause does limit the power of the state to criminalize consensual
sexual conduct as long as it takes place in private. As Part II explained, and
as the next section will elaborate,1 44 there is reason to believe that sex in
public places can indeed be private to the extent that those who engage in it
successfully exclude unwilling gazers.

Therefore, a degeographized understanding of the Due Process
Clause (akin to that of the Fourth Amendment), coupled with the Lawrence
Court's recognition that individuals have an important liberty interest in
choosing their sexual partners, calls for a more expansive interpretation of
what constitutes a reasonable expectation of privacy in the context of public
sex than courts have so far been willing to provide. 145

A substantive due process analysis that seeks to assess the
reasonableness of the privacy expectations of sexual actors outside of the
home, by focusing on the extent to which they have taken reasonable
precautionary steps to exclude unwilling gazers, would permit courts to
continue to protect the legitimate interests of those who have not consented
to observe the sexual conduct in question. At the same time, this approach
accounts for the fact that the liberty interests of individuals implicated in
their choice of sexual partners do not completely disappear when that
choice is made and exercised in geographies outside of the home.

sexual liberty is worth protecting only when it is exercised from within committed
relationships.

142 Lawrence, 539 U.S. at 562.

143 There are exceptions to this general rule. It might be illegal, for example, to be

intoxicated in a public place, but not in a private one such as a home. It also might be illegal
to smoke cigarettes in certain public places, but not at home. I thank Andy Leipold for
providing me with these examples.

144 See infra notes 146-68 and accompanying text.

145 For examples of courts that have provided a narrow interpretation of privacy

interests, see sources cited in note 11, supra.

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42 Columbia Journal of Gender and Law [Vol. 18:1

C. The Reasonableness of Privacy Expectations of Those Who Engage
in Public Sex

It would seem clear, even under the Court's current understanding
of the right to sexual liberty, that not all consensual sex between adults in
the home is constitutionally protected. The right would presumably not
protect sexual actors, for example, who insist on having sex in front of an
unobstructed window in their homes, making it possible for those who pass
by to observe the sexual acts. 146 This example illustrates how the mere
physical presence of sexual actors in their home is not sufficient to trigger
the application of a constitutional right to sexual liberty.

The more controversial issue is whether the presence of the sexual
actors in the home (or analogous places like hotel rooms) should be
necessary for the constitutional right to sexual liberty to apply. The intuition
of most people, including judges, seems to be that when sex takes place at a
site that is generally accessible by the public, the sexual actors in question
effectively waive whatever privacy interests they may have arising from
their sexual conduct. 47

The discussion of public sex sites in Part II, however, suggests that
it is possible to create zones of privacy in public places. 48 An expectation
of privacy at these sites may be reasonable if the sexual actors have taken
the necessary steps to shield their conduct from unwilling gazers. It would
seem, for example, that individuals have a reasonable expectation of

146 A committee report issued by the Illinois legislature explained the scope of the

state's criminal prohibition against public indecency as follows:

It is the probability of public view that is crucial rather than the
ownership or use of the particular real estate upon which the act occurs.
For example, a person standing nude before a lighted window of his
private apartment at night, adjacent to a well traveled public sidewalk
would be, for purposes of this statute, in a public place. Contrawise, a
couple in a parked car on a public right-of-way but in a lonely country
lane might not be in a public place, depending upon the likelihood of
others traversing this particular area at such hours.

People v. Legel, 321 N.E.2d 164, 168 (III. App. Ct. 1974). See also Byous v. State, 175
S.E.2d 106, 107-08 (Ga. Ct. App. 1970) ("If intentionally done for the purpose of being seen
by members of the public, then the fact that it is within a private residence and done from
behind a window will not remove it from the statutory prohibition" against public
indecency).

147 See cases cited in note 111, supra.

148 See supra notes 55-109 and accompanying text.



2008] Privacy, Property, and Public Sex

privacy when they have sex at a commercial establishment behind the
closed doors of a cubicle or booth. The doors serve as physical barriers that,
when coupled with a prevailing norm that other patrons will not enter unless
invited, 149 make it unlikely that the sex will be observed by unwilling
gazers. 150

149 See supra note 102 (discussing understanding among users of gay bathhouse

that closed cubicle doors mean that individuals inside do not want to be disturbed or
observed).

150 See CALIFIA, supra note 34, at 76 ("People sitting behind the closed door of a

bathroom or of a movie booth in an adult bookstore can reasonably assume they have
privacy.").

Although the Supreme Court has not addressed the issue, several lower courts have
recognized that, under certain circumstances, a reasonable expectation of privacy under the
Fourth Amendment can exist in public restrooms. Courts have held, for example, that "a
person using a public restroom enjoys a reasonable expectation of privacy in being shielded
from view by the privacy partitions in the restroom." United States v. Hill, 393 F.3d 839, 841
(8th Cir. 2005). This is particularly true when the conduct in question takes place behind
closed bathroom stalls. See, e.g., Ward v. State, 636 So.2d 68, 72 (Fla. Dist. Ct. App. 1994);
People v. Dezek, 308 N.W.2d 652, 655 (Mich. Ct. App. 1981). Although for some courts the
absence of a stall door is determinative of the lack of a reasonable expectation of privacy,
see, e.g., Young v. State, 849 P.2d 336, 342 (Nev. 1993); Buchanan v. State, 471 S.W.2d
401, 404 (Tex. Crim. App. 1971), other courts have held that the absence of a door does not
render the expectation of privacy unreasonable while an individual is inside a toilet stall. See,
e.g., People v. Triggs, 506 P.2d 232, 236 (Cal. 1973) ("The expectation of privacy a person
has when he enters a rest room is reasonable and is not diminished or destroyed because the
toilet stall being used lacks a door."); State v. Casconi, 766 P.2d 397, 399 (Or. Ct. App.
1988) ("Simply because an individual chooses to use a public restroom or a stall without
doors does not mean that he is automatically deprived of all privacy when he enters.").

Some courts have held that there is no reasonable expectation of privacy in a
public restroom when the person uses the site for sexual purposes as opposed to its
traditional purposes. See People v. Anonymous, 415 N.Y.S.2d 921, 923 (N.Y. Just. Ct. 1979)
("The public's right to expect privacy in such locations is reasonably limited to the
performance of excretionary and ablutional acts indigenous to a restroom [but] never for
sexual acts of any nature."); State v. Henry, 783 N.E.2d 609, 617 (Ohio Ct. App. 2002)
("Ohio courts have found that society is not prepared to recognize as reasonable an
expectation of privacy by persons engaging in behavior in restrooms that goes beyond the
intended purposes of the restroom, i.e., sexual acts."); see also Smayda v. United States, 352
F.2d 251, 254 (9th Cir. 1965) (holding, in case of individuals arrested for engaging in oral
sex in bathroom in public park, that there is no reasonable expectation of privacy when a
public restroom is used for criminal activities). For other courts, however, the fact that the
defendants engaged in sexual acts in public restrooms did not preclude a finding that their
expectations of privacy were reasonable. This second group of courts has focused instead on
the degree of intrusiveness that accompanied the police's surveillance of the bathroom. See,
e.g., Kroehler v. Scott, 391 F. Supp. 1114 (E.D. Pa. 1975) (issuing an injunction prohibiting
police officers from looking into toilet stalls from holes that they made in bathroom ceiling
for the purpose of investigating sexual conduct); Triggs, 506 P.2d at 409-11 (holding that



Columbia Journal of Gender and Law [Vol. 18:1

Admittedly, not all of the sexual conduct that occurs in commercial
sex establishments takes place behind closed doors. Nonetheless, some
commercial sex establishments are configured in ways that make it unlikely
that sex which takes place outside of booths and cubicles will be observed
by unwilling gazers. The use of the backroom in the gay adult bookstore
discussed in Part I is an example of such a configuration.' 51 In order to
enter that backroom, patrons have to pay a fee, 52 and then go through a set
of curtains to enter a dimly lit area.153 "The important characteristics [of this
backroom] are several: the site is marked, explicitly, for erotic activity, and
persons who enter the site may freely assume that they share similar erotic
interests with persons already on-site.' 54 It is reasonable to assume,

officer's "clandestine" surveillance of sex in a public bathroom from vantage point of
"plumbing access area" constituted an impermissible search); State v. Bryant, 177 N.W.2d
800, 804 (Minn. 1970) (ruling that observation by police officer, stationed on top of a ceiling
ventilator above public restroom, of sexual conduct in toilet stalls was inadmissible). For a
review of the surprisingly large number of Fourth Amendment cases that have arisen from
events taking place in public restrooms, see Michael R. Flaherty, Search and Seizure:
Reasonable Expectation of Privacy in Public Restroom, 74 A.L.R. 508 (1989).

151 See supra notes 89-93 and accompanying text.

152 It is possible to argue that, in charging a fee to enter either the facility itself, or

a particular location within that facility, the owner (usually through his employees) exercises
a gatekeeping function that privatizes the site. The problem with this argument is that the
actual gatekeeping done by owners and their agents at most commercial sex establishments
seems to be quite limited. See supra note 52 (citing sources). It would appear, in other
words, that at most establishments, potential patrons are admitted as long as they are willing
to pay the entrance fee. In my estimation, therefore, the payment of a fee should not by itself
create the necessary conditions for a finding that the sexual actors' expectations of privacy
are reasonable. Instead, the payment of a fee to enter a backroom, for example, can be one of
several factors that contribute to the shared understanding by users regarding the sexualized
nature of the zone in question. That shared understanding is a crucial component of the
process of privatization of public sex sites because it considerably lessens the likelihood that
nonconsenting third parties will observe the sexual conduct in question. See Leap, supra note
89, at 129 ("The attendant's gatekeeper functions as well as the fee/membership
requirements underscore the backroom's status as 'private' space ...."); Murray, supra note
48, at 165 (noting that at "[g]ay sex clubs[,] ... [g]atekeepers collect money, so that anyone
who is present is not only conscious of what kind of place he is in, but has paid to be in a
place where men meet men for sex, most of which occurs on the premises, albeit in varying
degrees of seclusion.").

153 See supra notes 91-93 and accompanying text.

154 Leap, supra note 89, at 127. When Leap interviewed the patrons of this

particular establishment, they repeatedly "use[d] the term 'private' ... to identify and
describe [the backroom]." Id at 129.



Privacy, Property, and Public Sex

therefore, that individuals who enter that particular backroom have
consented to observe, and to be observed engaging in, sexual conduct.

It is also, however, reasonable to assume that the likelihood that sex
will be observed by unwilling gazers increases, and the extent of the
reasonableness of the privacy expectations of the sexual actors therefore
decreases, when shifting from private commercial sites to open access
areas. Nonetheless, the sociological literature on public sex shows that it is
possible, at least under some circumstances, for sexual actors to use open
access spaces in ways that go undetected by potential unwilling gazers. 15

It may be argued that the possibility that sex in open access areas
may be observed by a third party renders unreasonable the sexual actors'
expectations of privacy. What should ultimately matter in establishing the
scope of the right to sexual liberty, however, should not be whether the sex
is observed but whether such observation is consensual.1 56 The state's
interest in regulating sexual conduct is implicated only once it is likely that
the sex will be observed by unwilling gazers. There is no harm that justifies
the interference with sexual liberty when there is consent on the part of both
the observers and the sexual actors. As Richard Mohr argues,

[w]e need to abandon the idea that in order for sex to be
considered private, it must be hidden away behind four walls. It is
not geography or mere physical enclosure that makes sex private.
... The sex act creates its own interpersonal sanctuary which in
turn is necessary for its success .... If the participants are all
consenting to be there with each other for the possibility of sex
polymorphic, then they fulfill the criterion of the private in the
realm of the sexual. 157

155 See supra notes 55-109 and accompanying text.

156 Michael Claus, in his ethnographic study of two public sex areas in New York

City, makes a distinction between "observed" sex and "public" sex. See Clatts, supra note
83. What distinguishes the two is that the former occurs only in places where it is understood
by everyone present that men congregate in order to have sex with other men or to observe
such sex. Id. at 160.

157 Tattelman, supra note 99, at 73 (quoting Richard Mohr, Parks, Privacy, and the
Police, THE GUIDE, Jan. 1996, at 16, 17-18). Mohr adds that "[i]f all the members present at
[a sexual] encounter are there by mutual consent, it is the rest of the world that is thereby
excluded by the nature of the sexual encounter. Therefore, nothing about the nature of sexual
encounters requires that the number of persons engaging in private sexual acts be limited."
MOHR, supra note 48, at 104.

In one section of his recent article addressing the issue of public sex, Lior
Strahilevitz seems to agree with the proposition that sexual actors in open access sites are

2008]



46 Columbia Journal of Gender and Law [Vol. 18:1

The California Supreme Court, in interpreting that state's
prohibition on the solicitation or commission of lewd conduct in public
places, has held that criminal liability can be imposed only if those who are
solicited to engage in sex or who are in a position to observe sexual acts are
likely to be offended. 5 8 In doing so, the court noted that "[t]he statute...

quite effective in privatizing those sites. He notes, for example, that "[i]n general, people
who want to have sex in open access spaces try to limit the number of non-consenting
passersby who might witness the act-choosing relatively isolated or less visible locations.
They thus try to find open access spaces that nevertheless offer a strong probability of social
privacy." Strahilevitz, supra note 109, at 693 (footnote omitted). See also id. at 694 (noting
that it is "rare" for sex in public sex sites to be observed by non-consenting individuals). It is
therefore surprising that Strahilevitz eventually concludes that the state's authority to
regulate sexual conduct in open access areas should be "virtually untrammeled" because
there is "a very substantial risk" that non-consenting individuals will observe the sex. Id. at
696.

158 Pryor v. Mun. Ct., 599 P.2d 636, 639 (Cal. 1979). The male defendant in Pryor
was approached by an undercover police agent. The officer parked his car near where the
defendant was standing. After a brief conversation, the defendant suggested they engage in
oral sex. According to the police officer, the defendant proposed that they engage in the
sexual act inside the car at a nearby parking lot. Id. The defendant contended that the
disorderly conduct statute under which he was charged was unconstitutionally vague. Id. The
state supreme court agreed, but then proceeded to narrow the scope of the statute as a way of
remedying its vagueness. Id. at 645. Other courts have also held that their state prohibitions
against lewd and indecent conduct require the government to show that the defendant knew
of the presence of others who were likely to be offended. See, e.g., Commonwealth v.
Sefranka, 414 N.E.2d 602, 608 (Mass. 1980).

Aside from issues of judicial construction, some public lewdness and indecency
statutes explicitly require that the conduct in question offend or alarm others. See, e.g., 18
PA. CONS. STAT. ANN. § 5901 (West 2008) (making it a criminal offense for a person to
engage in "any lewd act which he knows is likely to be observed by others who would be
affronted or alarmed"); TEX. PENAL CODE ANN. § 21.08 (Vernon 2008) (a person commits
the offense of indecent exposure if "he exposes his anus or any part of his genitals with the
intent to arouse or gratify the sexual desire of any person, and he is reckless about whether
another person is present who will be offended or alarmed by his act."). In Broussard v.
State, 999 S.W.2d 477 (Tex. Ct. App. 1999), the defendant was charged under Texas's
indecent exposure statute after another man performed oral sex on him in a small theater at
the back of an adult bookstore. Id. at 480. The court held that the presence of at least three
other persons in the theater constituted sufficient evidence for the trier of fact to "infer [that
the defendant] knew others were present who might be offended or alarmed." Id. at 483. It is
not clear, however, that the defendant had any reason to know (or even suspect) that the
particular men in the theater might be offended or alarmed by his conduct. Two of those
individuals masturbated themselves in the theater, and one of them performed fellatio on the
defendant. Id. It is therefore unlikely that either of them was "affronted or alarmed" by the
defendant's conduct.

The third individual was the undercover officer. Id. It would appear that there was
no reason for the defendant to believe that the third man would be offended by his conduct



Privacy, Property, and Public Sex

serves the primary purpose of protecting onlookers who might be offended
by the proscribed conduct." 159 The court then added that "even if [the
sexual] conduct occurs in a location that is technically a public place, a
place open to the public, or one exposed to public view, the state has little
interest in prohibiting that conduct if there are no persons present who may
be offended.' 160 The mere presence of onlookers, in other words, is not
enough to make the conduct punishable. Although the constitutional
challenge in the case was grounded in the alleged unconstitutional
vagueness of the statute rather than on substantive due process principles,
its holding is consistent with the analytical approach that I suggest should
be used to determine the scope of the right to sexual liberty in public
places. 161

given that this third man stood in the back of the room calmly and voluntarily observing
what the other men were doing. See id. (noting that undercover officer "stood against the
wall to make observations."). See also Commonwealth v. Can-Port Amusement Corp., No.
050295, 2005 WL 2009672, at * 1 (Mass. Super. June 29, 2005) (noting that patrons in adult
movie theater did not "appear[] to the [police] officers to be shocked or alarmed by th[e]
open sexual activity [that was taking place on the premises].").

159 Pryor, 599 P.2d at 646. The court also made it clear that in order to be
constitutional, the statute had to prohibit particular sexual conduct "involv[ing] the touching
of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification,
annoyance or offense." Id. at 639.

160 Id. at 647 (emphasis added).

161 Courts have varied in their interpretations of the scope and meaning of Pryor.

In an early case, decided only a year after Pryor, a California appellate court upheld a trial
court's finding that an operator of an adult gay bookstore knew that sexual conduct which
took place therein would be offensive to others. See People v. Adult World Bookstore, 108
Cal. App. 3d 404 (Cal. Ct. App. 1980). Although there was no evidence that any patrons had
complained about the sexual conduct in question, the court nonetheless concluded that "[n]ot
everyone who enters a dirty bookstore (euphemistically adjectived [sic] 'adult'), expects to
be molested, propositioned, or subjected to an open view of live homosexual acts of others."
Id. at 409. (Police officers "reporte[d] instances of masturbation and oral copulation
observed by them through openings (glory holes), in the partitions between certain of the
booths" and "invitations to them from male patrons ... to share booths for the purpose of
engaging in homosexual activities . I... Id. at 407. However, there was no evidence, as the
court suggested, that anyone was "molested."). Despite the court's acknowledgment that the
California Supreme Court's case law made "it clear that knowledge of possible offense to
third persons is a question of fact and cannot be answered solely by reference to the location
in which the conduct occurred," id. at 410 (citation omitted), the court seems to have done
precisely that by concluding that adult bookstores are patronized by "neutral customers," id.
at 410, who are always likely to be offended by observing sexual conduct.

The more recent opinion, Brown v. County of San Joaquin, No. CIV. S-04-2008
FCD PAN, 2006 WL 1652407 (E.D. Ca. June 13, 2006), offers a more robust reading of

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48 Columbia Journal of Gender and Law [Vol. 18:1

There can be, of course, no guarantee that sex in open access areas,
such as public bathrooms and highway rest stops, will remain undetected. It
is always possible that, despite significant precautions taken by sexual
actors, unsuspecting individuals may nonetheless stumble across sexual
conduct that they will find offensive. The question, however, should not be
whether it is possible that an unwilling gazer will observe the sex. It is, after
all, possible that an unwilling gazer (such as an unexpected visitor) will
stumble across sexual conduct that takes place in the home. The question
instead should be whether it is likely that a nonconsenting third party will
observe the sex. 162 The public sex literature suggests that such an outcome
is unlikely in at least some open access sites under some circumstances. 163

We should, therefore, resist the urge to jump to the conclusion that
sex in open access areas should always be constitutionally unprotectable.

Pryor. Brown drove into a public park and parked near one of the restroom facilities located
therein. He got out of the car, but did not immediately go in. Id. at * 1. (As noted in Part II,
this is a common step taken by men at public restrooms and highway rest stops who want to
signal to other interested men that they are interested in sex. See supra note 63 and
accompanying text.) After a few minutes, Brown went into the restroom and was "followed
shortly thereafter" by a police officer in plain clothes who was monitoring the bathroom. Id.
at *2. The police officer claimed that he eventually observed Brown masturbating in front of
the urinal, a fact disputed by Brown. Id.

The court determined that it was unclear, under the analysis called for by Pryor,
whether there was sufficient probable cause to conclude that Brown knew or should have
known that the alleged masturbation would be offensive to the officer. Id. at *5. As the court
noted,

[t]he undisputed evidence reveals that [the officer] spent several minutes
in the restroom, walked back and forth behind plaintiff twice, and left
and reentered the restroom at least once. [Brown] provides evidence that
he saw defendant [the officer] staring at him. Plaintiff also testified that
[the officer] twice asked him if he was okay while standing at the urinal.

Id. (citations omitted). There was evidence, in other words, that Brown may have reasonably
believed that the officer (who was posing as a bathroom patron) was interested in engaging
or observing sexual conduct.

162 See People v. Lake, 67 Cal. Rptr. 3d 452, 458 (Cal. Ct. App. 2007) (holding

that "the mere 'possibility' that someone will be offended is not enough to show violation
of statute prohibiting the solicitation of lewd or dissolute conduct in a public place; instead,
there has to be "some likelihood that third persons be present and be offended by the
conduct."). See also People v. McNamara, 585 N.E.2d 788, 792-93 (N.Y. 1991) (noting, in
case involving alleged public lewdness, that "[o]bviously, places that are public in a property
sense can be very private in terms of the likelihood of casual observation.").

163 See supra notes 55-83 and accompanying text.



2008] Privacy, Property, and Public Sex 49

This is particularly true in cases in which law enforcement officials have to
engage in intrusive or deceptive practices to observe the sexual conduct in
question. Public sex advocates argue that much of the sex that takes place in
open access areas would go undetected but for the aggressive investigative
tools used by government officials. 164 Pat Califia, for example, notes that
"[i]f people are going to see what is going on in these places, they must
intrude. They must actively look for things that will offend them either by
penetrating physical barriers, by setting up covert surveillance, or by posing
as potential participants."' 65 The greater the efforts that must be engaged in
by law enforcement officials and others to observe public sex, the more
likely it is that the sexual actors in question are taking the necessary steps to
exclude unwilling gazers and other potential intruders. 66

164 In Young v. State, 849 P.2d 336 (Nev. 1993), the police suspected that sexual

conduct was taking place in a public restroom located in a public park. Visual surveillance of
the bathroom proved to be "futile," however, because the officers "could be seen and heard
approaching the stalls, thus enabling the individuals to discontinue their activities and elude
detection." Id. at 339. The fact that the sexual actors were apparently effective in shielding
their conduct from unwilling gazers led the "officers [to] set up a monitor and video
equipment in a maintenance room separating the men's and women's restrooms. A miniature
camera was installed in a metal alarm box with a grate-type bottom located above the two
stalls over the partition." Id. (footnote omitted).

165 CALIFIA, supra note 34, at 76. Califia quotes Matthew Coles, a lawyer who

represented men charged with soliciting others to have sex in a public place (and who later
became the Director of the ACLU's Lesbian and Gay Rights Project), as stating that "[i]n
four years of practicing law, I've never seen a [public sex] case based on the complaint of a
citizen (not a cop) who got propositioned when he didn't want to be." Id. at 77 (citation
omitted).

166 The actions of the police, and their methods of investigating public sex, are

important in addressing the seemingly persistent problem of the unequal enforcement of
solicitation and public lewdness laws against men who have sex with men. There is
considerable evidence that law enforcement officials frequently target consenting and
uncompensated male on male sexual solicitation and conduct in public places-frequently by
conducting extensive and expensive investigations-while paying little attention to the same
conduct when the sexual actors in question are of different sexes. See Christopher R. Leslie,
Standing in the Way of Equality: How States Use Standing Doctrine to Insulate Sodomy
Laws from Constitutional Attack, 2001 Wis. L. REv. 29, 84 (noting that "[m]any police
departments employ undercover operations designed to entrap gay men into offering or
requesting oral sex . . . . Although most sodomy laws apply equally to heterosexual and
homosexual sodomy, police departments do not expend resources in search of heterosexuals
willing to give or receive oral sex (or other forms of sodomy)."). See also Pryor v. Mun. Ct.,
599 P.2d 636, 644 (Cal. 1979) ("Three studies of law enforcement in Los Angeles County
indicate that the overwhelming majority of arrests for violation [of the lewd conduct statute]
involved male homosexuals.") (citation omitted); id at 644 n.8 ("A perusal of... studies
suggests both that the police selected techniques and locations of enforcement deliberately
designed to detect a disproportionate number of male homosexual offenders, and that they



50 Columbia Journal of Gender and Law [Vol. 18:1

Given the visceral reaction by many individuals to the very notion
of public sex, many (perhaps most) judges, at least initially, might be
unwilling to conclude that the expectations of privacy by sexual actors in
public sites are reasonable.' 67 At the very least, however, courts should

arrested male homosexuals for conduct which, if committed by two women or by a
heterosexual pair, did not result in arrest.") (citations omitted). For newspaper accounts of
the targeting of gay men by law enforcement agencies, see, e.g., Amber Arellano et al.,
Group Says Detroit Cops Target Gays: Decoys Used to Raise Case, Triangle Charges,
DETROIT FREE PRESS, July 6, 2001, at IB; Matt Lait, LAPD Officers Target Gays, Police
Commission is Told, L.A. TIMES, May 6, 1998, at B3. The actions of the Detroit police led
the city council to approve an award of $170,000 to settle litigation challenging a pattern of
entrapment in the enforcement of public lewdness laws against gay men at a local park. See
Darren A. Nichols, Detroit Settles Lawsuit over Police Sting on Gays, DETROIT NEWS, May
16, 2002, at D2. See also Martinez v. Port Auth. of N.Y. & N.J, No. 01 Civ.721(PKC), 2005
WL 2143333 (S.D.N.Y Sept. 2, 2005), aff'd, 445 F.3d 158 (2d Cir. 2006) (defendants
ordered to pay $464,000 to compensate plaintiff for police policy of arresting men for public
lewdness at a subway station without probable cause); Baluyut v. Super. Ct., 911 P.2d 1, 4
(Cal. 1996) (defendants presented evidence of ten arrests over a two-year period which led
the trial court to conclude "that the operation was focused solely on persons who had a
proclivity to engage in homosexual conduct."); State v. Pinkal, No. C6-00-508, 2001 WL
55463 at *7 (Minn. Ct. App. Jan. 23, 2001) (noting that defendant presented "statistical
evidence ... show[ing] that there is a higher incidence of indecent conduct citations issued
in an area where gay men tend to gather [and] [b]y way of affidavit ...that there are
witnesses who ...should be able to testify that laws proscribing indecent conduct are
selectively enforced against gay men because of anti-homosexuality sentiment.").

The investigation of public sex by many police departments, then, raises serious
equal protection issues. The actions taken by law enforcement officials, however, are also
relevant to the substantive due process issues discussed in this Article because they show the
lengths to which those officials must go to in order to put themselves 'n a position to view
sexual conduct that the sexual actors attempt to shield from others. See HUMPHREYS, supra
note 55, at 84-85 (describing surveillance techniques used by police, including cameras and
two-way mirrors); Young, 849 P.3d at 339 (describing police's use of a miniature camera to
monitor a public bathroom).

167 The ability of the "reasonable expectation of privacy" standard to afford
protection to sexual actors in public places will, of course, depend on the willingness of
judges to recognize that individuals who engage in sexual acts in public places can have
legitimate expectations of privacy in at least some circumstances. It is admittedly troubling
in this regard that, in the Fourth Amendment context, the shift from a property-based
analysis to a privacy-based one, which at first seemed to herald greater protections for
individuals, has been used more recently by the Court to limit those protections. See Clancy,
supra note 122, at 340 ("while a liberal Court substituted privacy in lieu of property analysis
to expand protected interests, a conservative Court has employed privacy analysis as a
vehicle to restrict Fourth Amendment protections.") (citations omitted). The Court has done
this by concluding that individuals lack a reasonable expectation of privacy in a broad range
of circumstances. For a summary of the Court's Fourth Amendment caselaw on this point,
see id. at 331-39.



2008] Privacy, Property, and Public Sex

dispense with the categorical rule that limits the right to sexual liberty to the
home and instead adopt the "reasonable expectation of privacy" standard
that has become the cornerstone of Fourth Amendment jurisprudence. This
would, in turn, encourage individuals who choose to engage in public sex to
introduce evidence regarding the efforts, made by themselves and others, to
privatize particular public sex sites in ways that make it unlikely that their
sexual conduct will be viewed by nonconsenting others. 68 Eventually, this
might lead courts, prosecutors, and the public to take another look at what
actually takes place in many instances of public sex and to perhaps
recognize the seemingly counterintuitive-but often descriptively
accurate-proposition that sex in public places can be extremely private.

IV. PROBLEMATIZING THE GEOGRAPHIC PRIVATE/PUBLIC
DISTINCTION IN MATTERS RELATED TO SEX

There will undoubtedly be objections to the idea that the
constitutional right to sexual liberty applies to public sites, especially those
in open access areas. Most of those objections will be grounded in the view

168 The district court judge in United States v. Malone, 822 F. Supp 1187 (Pa. D.

1993), applied the type of analysis that this Article advocates in public sex cases. The
defendant in Malone was convicted by a federal magistrate of engaging in a lewd act at a
National Park in Pennsylvania. Under Pennsylvania law, made applicable to federal property
under the Assimilative Crimes Act, 18 U.S.C. 13 (Supp. 1988), it is a criminal offense for a
person to engage in "any lewd act which he knows is likely to be observed by others who
would be affronted or alarmed." 18 PA. CONS. STAT. ANN. § 5901 (West 2000). The district
court reversed, concluding that the defendant did not intend to engage in conduct that he
knew would alarm or affront others. Malone, 822 F. Supp at 1189. In doing so, the court
noted the steps that the defendant took to privatize the public site:

[T]he evidence shows that Malone [the defendant] invited Hetrick [an
undercover police officer] to walk a good distance from the picnic area
to a "normally wooded" (as opposed to "heavily wooded") area. This
area was several yards from the railroad grade, was accessible only by a
narrow foot path, and was shielded from the main trail by trees. Then, by
the time Malone "rubbed [Hetrick's] chest in a circular motion," the men
were another 20 yards from the open space. There was no testimony that
anyone else did see them or was likely to see them. Every detail even of
Hetrick's story suggests Malone was looking for privacy, not for public
display.

Id. (emphasis added). Additionally, the court in Malone correctly concluded that the
undercover officer did not qualify as an "other" who was likely to be affronted or alarmed by
the defendant's conduct because the former agreed to accompany the latter for a walk away
from the picnic area. The policeman also observed the defendant rub his groin area "for
several minutes ... without indicating alarm." Id. at 1188-89.



Columbia Journal of Gender and Law

that particular geographies are either intrinsically public (e.g., a park) or
intrinsically private (e.g., a home) and that the "natural" characteristics of
sites should determine the ambit of the sexual liberty rights that can be
exercised therein.169 This essentialized understanding of geography,
however, fails to account for the ways in which human practices and
activities give rise to different ways of seeing and understanding particular
geographies. In the end, a private/public distinction that views the two
categories of places as mutually exclusive fails to reflect the multiplicity of
meanings that accompany human practices and activities in any given site.

That a rigid public/private distinction is of limited analytical use is
clear from the fact that even the home, the most private of sites, is subject to
a significant degree of public oversight and regulation. There are many
aspects of what takes place in the home that are legitimate grounds of
public regulation. The state, for example, has the authority to regulate
everything from the number of people who can live in a particular
dwelling1 70 to whether certain substances (such as illegal drugs) may be
consumed therein. This exercise of public regulatory authority does not
deny that in some instances and for certain purposes, what takes place in the
home is deemed private and is thus shielded from public regulation. The
point instead is that the line between the public and private in this context is
neither static nor pre-determined by a site's intrinsic nature. There is
perhaps no better illustration of this than the fact that sexual intimacy
between two individuals of the same sex in the home was a legitimate
subject matter of governmental regulation until June 26, 2003, when the
Supreme Court issued its opinion in Lawrence v. Texas.17 1

In the same way that seemingly private places can be rendered
public for purposes of regulation, seemingly public places can be privatized
for certain purposes. The phenomenon of public sex illustrates that there is
no natural division between the public and the private in even the most
public of places. 7 2 Where the line between the public and the private is

169 See, e.g., United States v. Mather, 902 F. Supp. 560, 565 (Pa. D. 1995)

(concluding that "every square inch of the [National] Park's grounds is public, and thus Park
grounds cannot supply a venue for sex akin to the privacy of a room").

170 See, e.g., Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding constitutionality

of an ordinance that prohibited more than two unrelated individuals from living together in
an area zoned for single-family residential use). See also Soules v. U.S. Dep't of Housing &
Urban Dev., 967 F.2d 817, 819 (2d Cir. 1992) (noting a "New York State Health Department
rule that required separate bedrooms for children of different sexes over five years old").

17' 539 U.S. 558 (2003).

172 See supra Part II.

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Privacy, Property, and Public Sex

drawn varies from site to site, and is determined by the human activities and
practices that take place therein. Those activities and practices destabilize
seemingly pre-determined understandings of the publicness or privateness
of particular sites. As William Leap notes,

[c]ertainly, the regulatory authority of the state can designate any
location as public space and enforce that designation through
various means. But such regulations cannot prevent
interpretations of public space in completely nonregulatory terms

; nor can they prevent assertions of privacy within such
locations. . . . Accordingly, rather than assuming that
interpretations of public or private space are locations, fixed
within local terrain, it seems more appropriate to treat public and
private as attributes of landscape which are assigned to particular.. , 173

sites by particular social actors and for particular reasons.

The law of public sex as currently constituted, which grants
individuals little or no immunity from criminal prosecution, deploys a rigid
and formalistic understanding of "public places." To see why this is the
case, it is helpful to briefly summarize the way in which the terms "space"
and "place" (which are usually used as synonyms by lay people) differ in
meaning for many in the field of geography.

"[U]ntil the 1970s, most human geographers considered space to be
a neutral container, a blank canvas that is filled by human activity.' 74 From
this perspective, it was possible to conceptualize space in entirely objective
and empirical ways that were independent of human experiences and
interactions. 75 As a result, many geographers understood their field as one
that called exclusively for measurement and quantification of observable
and natural phenomena.

Beginning in the 1970's, however, a group of geographers began to
question the presumed objectivity of this type of analysis. Some of the most
important early dissenters, inspired by insights gleaned from psychology,
"develop[ed] a behavioural perspective that explored the role of the
conscious mind in shaping human spatial behaviour."' 176 Although these

173 Leap, supra note 89, at 136.

174 Editors' Introduction, in KEY THINKERS ON SPACE AND PLACE 1, 4 (Phil
Hubbard et al. eds., 2004) [hereinafter KEY THINKERS ON SPACE AND PLACE].

175 "This absolute or 'empirico-physical' conception suggested that space can be
conceived as outside of human existence; rather than playing an active role in shaping social
life, it is regarded as a backdrop against which human behaviour is played out ... " Id.

176 Id. (citation omitted).

20081



Columbia Journal of Gender and Law

thinkers still largely clung to "the tenets of positivist inquiry," they did so
by emphasizing notions of subjectivity and the importance of social
relations in the conceptualization of space. 177

This initial critique of the understanding of geography as an entirely
objective science eventually gave way to a more fundamental critique of the
long-held assumption within the discipline that it was possible to
conceptualize space independently of human existence. It was this critique,
which was influenced by both Marxist and postmodernist theories, that led
to the emergence of the concept of "place ... as a particular form of space,
one that is created through acts of naming as well as the distinctive
activities and imaginings associated with particular spaces. For many
geographers [today], place . . . represents a distinctive (and more-or-less
bounded) type of space that is defined by (and constructed in terms of) the
lived experiences of people."17 8

To many contemporary geographers, then, it does not make sense to
conceive of distinct spaces as having meanings that are independent of the
human interactions that occur therein. From this perspective, the meanings
of private places and public places, for example, are attributed through
human practices and activities rather than through characteristics that are
somehow pre-determined and static. This understanding "recognizes the
open and porous boundaries of place as well as the myriad interlinkages and
interdependencies among places. Places are thus relational and contingent,
experienced and understood differently by different people; they are
multiple, contested, fluid and uncertain (rather than fixed territorial
units)."

' 179

In contrast to the ways in which many contemporary geographers
understand the different meanings and characteristics of "place," the law of
public sex continues to cling to a rigid and essentialized understanding of
"public places," one that views sites such as parks and public bathrooms as
having intrinsic and uniform characteristics that determine the type of

177 Id.

178 Id. at 5. See also Yi-Fu TUAN, SPACE AND PLACE: THE PERSPECTIVE OF

EXPERIENCE 6 (1977) ("What begins as undifferentiated space becomes place as we get to
know it better and endow it with value.").

179 Editors' Introduction, in KEY THINKERS ON SPACE AND PLACE, supra note 174,
at 6. The literature on this topic is vast. Some representative examples include THE POWER OF

PLACE: BRINGING TOGETHER GEOGRAPHICAL AND SOCIOLOGICAL IMAGINATIONS (John A.
Agnew & James S. Duncan eds., 1989); THE ANTHROPOLOGY OF LANDSCAPE: PERSPECTIVES

ON PLACE AND SPACE (Eric Hirsch & Michael O'Hanlon eds., 1995); and TUAN, supra note
178.

[Vol. 18:1



2008] Privacy, Property, and Public Sex 55

conduct that can appropriately take place therein. When individuals use
public sites for sexual purposes, they challenge and contest the notion that
those sites, because they are legally and culturally deemed to be "public,"
should also automatically be defined as nonsexual zones. By privatizing
those sites, even if only temporarily, sexual actors contribute to the
attribution of different meanings to them. 180 Those attributions are neither
static nor permanent, but instead vary according to the practices and
expectations of the site users at any given time. i1

The boundaries between the private and the public in the context of
sex and sexuality are much more fluid and contestable than the current law
of public sex recognizes. Indeed, as Jeffrey Weeks argues, those

18o See Bell, supra note 31, at 315 ("By eroticising anonymity and publicity,

(some) participants in public (homo)sex are actively challenging hegemonic definitions of
public and private") (citations omitted). See also Gordon Brent Ingram, Marginality and the
Landscapes of Erotic Alien(n)ations, in QUEERS IN SPACE, supra note 28, at 27, 39 ("[P]ublic
space, like both conventional and marginal sexual identities, has been and will continue to be
constructed and reconstructed."); Ingram et al., supra note 55, at 21 ("A queer space is an
activated zone made proprietary by the occupant or fldneur, the wanderer. It is at once
private and public. Our cities, our neighborhoods, our homes, are loosely defined territories
inscribed not merely by the laws of proprietary ownership but by implicit and shifting
inflections of presence, conspicuous or otherwise.").

181 Although the issue is beyond the scope of this Article, much has been written

on the use of public spaces (in particular urban ones) by sexual minorities to foster
communities of friendship, support, and political activism in a society that is generally
hostile to them. See e.g., Robert Aldrich, Homosexuality and the City: An Historical
Overview, in CITIES OF PLEASURE: SEX AND THE URBAN SOCIALSCAPE 89 (Alan Collins ed.,
2006); Manuel Castells & Karen Murphy, Cultural Identity and Urban Structure: The
Spatial Organization of San Francisco 's Gay Community, in URBAN POLICY UNDER
CAPITALISM (Norman I. Fainstein & Susan S. Fainstein eds., 1982); Lawrence Knopp,
Sexuality and Urban Space: A Framework for Analysis, in MAPPING DESIRE, supra note 31,
at 149. When members of sexual minorities use public sites for sexual purposes they can be
understood as engaging in a similar effort to appropriate geographies from which they have
been traditionally excluded. While in theory, for example, everyone is able to walk through a
public park, a same-sex couple who wants to do so while holding hands is likely to face
opprobrium, harassment, and sometimes even violence. See Hubbard, supra note 46, at 56
("Even in cities where the authorities are seemingly tolerant and even encouraging of gay
tourism and nightlife . . . , it is evident that most gay men and women face routine prejudice,
discrimination and violence on the streets.") (citation omitted). It would appear, however,
that the process of geographic appropriation by public sex sexual actors has different
implications than, for example, when gay people move into a particular neighborhood. For
one thing, public sex sites are less stable and permanent geographies. See id. at 66 ("Unlike
contemporary gay villages, red-light districts and other public expositions of sexual
dissidence, . . . these spaces [are] not ... fixed and permanent communities .... Instead,
they [are] ephemeral sites of freedom and control which [can] be used to create fleeting but
transitory identifications out of which new identities and citizenships could emerge.").



Columbia Journal of Gender and Law

"borderlines are extremely difficult to detect, let alone police, and where we
should stake out the fences between public passion and private conscience,
or between private needs and public indifference, are far from certain."'182

There are many aspects of sex that are public in nature. It is
common, for example, for individuals to first meet their sexual partners in
public places (such as on the streets, in workplaces, or in bars). Even when
the sex occurs in a home or hotel room, the initial contact often occurs in
places that are publicly accessible. 183 In addition, much of what individuals
learn about sex and sexuality is learned from the broader culture.184 When it
comes to sex, most of what we do in private, we learn in public. Most sex,
therefore, has a public dimension to it, regardless of whether it is
consummated in a private or public place.

Indeed, our very understanding of sex and sexuality is determined
publicly. As Michel Foucault famously recounted, one of the constitutive
characteristics of the modem era is the ways in which scientific, medical,
and psychiatric disciplines have subjected sex and sexuality to constant
public discussion. 185 These disciplines have studied, analyzed, and
schematized human sexuality through an endless discussion and cataloging
of sexual desires, tendencies, and acts. As Foucault notes, beginning in the
eighteenth century, "sex was taken charge of, tracked down as it were, by a
discourse that aimed to allow it no obscurity, no respite. ' 86 He adds that
"[w]hat is peculiar to modern societies... is not that they consigned sex to
a shadow existence, but that they dedicated themselves to speaking of it ad
infinitum, while exploiting it as the secret."' ' 87

182 See Bell, supra note 31, at 304 (quoting Jeffrey Weeks, Changing Sexual and
Personal Values in the Age of AIDS, Address Before Forum on Sexuality Conference,
Amsterdam (June 1992) at 2). See also WEEKS, supra note 108, at 222 (noting that public sex
"places break with the conventional distinctions between private and public, making
nonsense of our usual demarcations.").

183 See Jagose, supra note 27, at 30 ("You can have sex in a quite private place

that is publicly accessible; this is true anytime people meet in bars or clubs or bathhouses or
chat rooms, even if they go home or to a hotel or to a locked cubicle.").

184 "Sex is ... public in the sense of being learned, or shared. Our most intimate

pleasures and sensations are public in this sense." Id.

185 See generally MICHEL FOUCAULT, 1 THE HISTORY OF SEXUALITY (1990).

186 Id. at 20.

187 Id. at 35.

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It is not just the disciplines discussed by Foucault that have sought
to bring sex out in the open, as it were. It is fair to say that American
commercial and cultural life is saturated with sexual images and
discourses-as is clear to anyone who watches television programs and
commercials for only a few minutes. This saturation belies the notion, upon
which the contemporary law of public sex is grounded, that matters of sex
and sexuality intrinsically belong to the sphere (whether conceptual or
physical) of "the private." It would seem, then, that most sex, and not just
public sex, embodies an amalgamation of the public and the private.

Society, however, is much more willing to tolerate (and in some
cases even celebrate) the public manifestations of certain types of sex than
of others. Our society, for example, does not seem particularly concerned
by titillating images of half-naked different-sex couples in billboard
advertisements that are viewed, willingly or not, by thousands of people
(including many children). 188 And yet, we are quick to express dismay at the
idea that two men, for example, might have sex in an isolated section of a
public park, even if it is highly unlikely that they will be observed by
others. The certainty that children will observe titillating heteronormative
sexual images on a billboard is, under our current norms and regulations, of
little social concern.1 89 In contrast, the mere possibility that third parties
might observe sex that takes place in the isolated area of a park is for many
enough to justify social condemnation, and state regulation, of the sexual
conduct in question. It would seem, therefore, that the issue is not so much
where sex belongs, but is instead what type of sex belongs where.

A skeptic might argue that the relevant difference between these

two examples is that in the case of the billboard, there is a representation of
sexual conduct, while in the case of the park, there is actual sexual conduct,
which is more harmful to those who are forced to observe without first
consenting. This distinction, it can be argued, explains why society is more
likely to condemn the sex in the park than the billboard. There are,
however, two reasons why that distinction fails to entirely explain society's
greater willingness to tolerate the latter than the former. First, it seems fair

188 Cf Clark Hoyt, Editorial, A Semi-Nude Minor? In the Times?, N.Y. TIMES, Dec.

16, 2007, at 10 (quoting a New York Times editor who stated that "[w]e're well past the point

in our culture when there is a bright line that separates sexually charged images of men and
women just short of 18 from art.").

189 See Ruskola, supra note 20, at 242 (noting that "'the world of public intimacy'.

remain[s] reserved for manifestations of normative heterosexuality.") (quoting LAUREN
BERLANT, THE QUEEN OF AMERICA GOES TO WASHINGTON: ESSAYS ON SEX AND CITIZENSHIP

5 (1997)).

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Columbia Journal of Gender and Law

to assume that the public would be less tolerant of the billboard if the
scantily clad couple in the titillating advertisement was comprised of two
men or two women. If the billboard portrayed a same-sex couple, there
would undoubtedly be calls from many quarters to protect children from
being exposed to homosexuality. Second, the aggressiveness with which
law enforcement agencies have historically investigated public sex between
men, while largely ignoring public sex between different-sex individuals,'9 0

suggests that what ultimately matters when it comes to condemnation and
regulation of public sex is not the sexual conduct itself, but who engages in
that conduct.

There is admittedly a tension between the "publicness" of certain
sites (such as parks and rest stops) and the "privateness" of the sexual
conduct that can take place therein. That tension, however, does not give
rise, as the current law of public sex seems to assume, to an intrinsic
contradiction that requires the application of a categorical rule that leaves
the sexual conduct in question completely outside of constitutional
protection. 91 Instead, the tension highlights the fluidity that, as already
noted, inheres in the boundaries between the "public" and the "private" in
matters of sex and sexuality. 192 If "the most private human conduct"'193 can
take place in the most public of places with little chance of being detected
by nonconsenting third parties, that suggests not that the private sexual
conduct is occurring in the "wrong place," but instead that what our laws
and culture deem to be a "public place" is not always public for all purposes
by all users in all instances.

CONCLUSION

The notion that the scope of the right to sexual liberty should
depend in part on the nature of the site where the right is exercised is deeply
ingrained in both our law and our norms. As this Article has shown,
however, it is possible to delink the concept of privacy from the privateness
or publicness of the sites where sexual conduct takes place. Such a
delinking does not require questioning the proposition that individuals have
a legitimate interest in not having to observe sexual conduct by others

190 See supra note 166 and accompanying text.

191 See supra notes 101-12 and accompanying text.

192 See supra notes 158-89 and accompanying text.

193 Lawrence v. Texas, 539 U.S. 558, 567 (2003).

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unless they consent. Instead, the delinking simply recognizes the fact that,
as the sociological literature shows, those who engage in public sex
frequently and effectively privatize public sex sites.194

There is an inconsistency between the Supreme Court's
geographization of the right to privacy under the Due Process Clause, as it
relates to sexual conduct, and the right to privacy under the Fourth
Amendment. In interpreting the latter provision, the Supreme Court has
made it clear that it protects people and not places.' 95 The application of a
similar analytical framework under the Due Process Clause, as this Article
has suggested, should lead courts to recognize the extent to which particular
sexual actors are able to successfully privatize certain public sites. 96

Same-sex sexual conduct was once so highly stigmatized that
courts refused to grant it constitutional protection regardless of where it
took place. 197 Under this approach, geography was irrelevant in determining
the authority of the state to regulate same-sex sexual conduct. After
Lawrence v. Texas, place matters because consensual sex is now protected
from state regulation only as long as it takes place in the home.1 98 This
geographization of the right to sexual liberty, however, leaves unprotected
all sexual conduct that takes place in public places, no matter how private
that sexual conduct might be.

The social stigma faced by those who engage in public sex is
analogous to the stigma that once applied to all same-sex sexual conduct.
As this Article has argued, however, when considerations of consent and
privacy are present, the sexual conduct that is part of public sex merits
constitutional protection.

194 See supra notes 55-109 and accompanying text.

195 See supra notes 120-23 and accompanying text.

196 See supra Part III.C.

197 See Bowers v. Hardwick, 478 U.S. 186, 194-96 (1986).

'9' 539 U.S. 558 (2003). See supra notes 1-9 and accompanying text.

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