Grope in Response to Homosexual Sex Sting, Flirtation Not Obscene

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By William Peacock, Esq. on July 23, 2013 1:22 PM

The Blue Ridge Parkway is home to some of the most breathtakingly beautiful scenery in America. It's not a wonder then, that the romantic Sleepy Gap Overlook of the Blue Ridge Parkway in Buncombe County, North Carolina has been home to a few rendezvous.

More than a few, actually. The forest fires of passion became so enflamed that the Park Rangers conducted a sting operation to target homosexual activity in the park.

Sadly, it seems that only Virginia is for lovers, not North Carolina.

According to the court opinion, the facts are as follows: During the operation, Ranger Joseph Darling approached the sixty-two-year-old defendant, grabbed his own crotch, and kept walking. Darling later re-approached him on an unofficial trail, made small talk, and expressed how open the community was to homosexuality.

The defendant then expressed his desire to engage in passionate activity. The Ranger provided an affirmative response, expressing his readiness as well. The defendant then faced away from Ranger Darling, walked backwards, and briefly took a "firm" grasp of Darling's genitalia, through the clothes.

Ranger Darling then arrested him for violating CFR § 2.34(a)(2), which prohibits disorderly conduct that is "obscene," "physically threatening or menacing," or "likely to inflict injury or incite an immediate breach of the peace."

What's the punishment for getting frisky in the forest? The magistrate judge sentenced the defendant to 15 days in jail, a fine of $1,000, and a two-year ban (later reversed by the district court) from government forests and parks.

On appeal, the defendant argues that his conduct met none of the regulation's three criteria.

In the absence of statutory definitions, the dictionary rules. The court cites the American Heritage Dictionary's definition, "[o]ffensive to accepted standards of decency" and "[m]orally repulsive," and the Oxford English Dictionary's definition, "[o]ffensively or grossly indecent, lewd[.]"

Neither is specific enough to give the defendant notice that his conduct, a grope in response to a flirtatious conversation in a forest, would be considered criminal. The court notes that the vague definition leaves the statute subject to arbitrary interpretation and enforcement, which seems to be exactly what happened here.

The sting operation targeted male-on-male sex using all male Forest Rangers. It was brought in response to complaints from the locals about male-on-male sex.

Either insufficient notice or a statute that "encourages arbitrary and discriminatory enforcement" can be unconstitutionally vague. Both criteria apply and support reversal.

The court did note that the regulation is vague as applied and not in all circumstances. It described a factual scenario, from another case, where two naked men certainly did violate the statute.

And in case it isn't yet obvious, a firm, yet painless grope by a senior citizen in response to an affirmation of consent to sexual conduct by a much-younger undercover Ranger is neither physically threatening nor a breach of the peace. The majority held as much after a flurry of cited definitions before overturning the conviction.

The dissent, meanwhile, takes issue with the lack of deference to the magistrate's fact-finding, and believes that a rational fact-finder could find that the groping was indicative of an immediate intent to engage in public obscene sexual activity.

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