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Assume it is true what an undercover officer claims about his encounter with Senator Larry Craig in an airport men’s room: Craig was asking for sex.

What we would have is an adult propositioning another adult. If that is a crime, then an entire industry of singles bars across the nation should be raided.

If Craig can be booked, then haul off the thousands of men across America who routinely hurl lascivious suggestions at women who happen to cross their lines of sight.

In Craig’s case, no words were uttered, lascivious or otherwise. No one gestured obscenely or touched anyone else, unless you count one guy’s shoe touching another’s.

To get arrested in a bathroom, you generally have to do something sort of sexual. Expose yourself. Grab somebody. In Craig’s case, no one claims he bared a private part, groped the cop, had public sex. Or any sex.

In fact, throughout the encounter, a stall divider separated the senator from the officer. Whatever else Craig says about his arrest, this much is undeniably true: He should have called a lawyer.

“We never would have advised him to plead guilty to that,” says Julie Loftus Nelson, a Minneapolis criminal defense lawyer at the firm of Frederic Bruno & Associates. “It’s a bad case to begin with.”

Police no doubt scrambled to come up with a halfway appropriate charge against Craig. They dug up two misdemeanors, disorderly conduct and interference with privacy. That last one, dropped when Craig pleaded guilty to the first one, might have applied because Sergeant Dave Karsnia said Craig first peered through the crack in the stall door at him.

A Thin Charge

But that’s a thin charge and hard to prove. Karsnia was obviously waiting for something more.

He got it once Craig sat down in the stall next to his and tapped his foot, a signal widely known among gay men as a sexual invitation. The senator then ran a hand, palm up, under the stall wall separating them, according to Karsnia’s report. Finally, Craig edged his foot into the next stall, touching the officer’s foot.

That’s when Karsnia flashed his badge, and Craig uttered his first word, which was “No.”

Craig defends his conduct as perfectly innocent and completely misunderstood. I’m not buying it. I also don’t get why what he did is a crime.

I understand that public bathrooms shouldn’t become sex parlors, and that police must patrol them to protect children, especially, from happening onto sexual acts. But, again, Craig wasn’t having sex.

A Public Place

If he had found someone amenable to the idea, would the senator have done it in a public bathroom? I doubt it. In any case, you can’t arrest someone for what they haven’t done.

Sure, you ought to be able to use a public bathroom without someone peering at you or invading your space. But let’s be honest. That isn’t the real wrongdoing alleged here.

If it were, the police report wouldn’t keep saying that Craig’s conduct matched signals gay men use for sexual invitations.

The crime Craig admitted was disorderly conduct. Minnesota law says that is committed when someone “engages in offensive, obscene, abusive, boisterous or noisy conduct” while “knowing, or having reasonable grounds to know, that it will, or will tend to, alarm, anger or disturb others.”

The worst that can be said of Craig’s conduct is that it was “offensive” and would tend to “disturb others.” Think for a moment how much everyday conduct that covers, conduct no one would dream of criminalizing.

What It Is

Sex in a public men’s room can be prosecuted for what it is. Police at the world’s busiest airport, Atlanta’s Hartsfield- Jackson, have this year arrested 45 men for public indecency in bathrooms there, according to airport spokesman Herschel Grangent.

But they don’t arrest on the basis of foot-tapping and hand signals.

“In all the cases where arrests were made, the individuals were engaged in an act or getting ready to engage in an act,” Grangent says. That usually means they are exposing themselves, he said.

The law says they aren’t publicly indecent unless they are engaged in public sex, are partly naked or are lewdly fondling someone else. That’s the kind of conduct worthy of arrest.

I believe Craig when he said he pleaded guilty just to get it over with. Ashamed and worried for his career, he no doubt hoped the whole thing would go away. Contesting it wouldn’t have accomplished that, empty as the charges seem to be.

Disturbing Element

That is the most disturbing element of his arrest. If homosexual conduct is even alleged against a closeted man, he has to either choose the quickest and quietest resolution possible or risk revealing the truth. That would probably mean losing his job, his family, the respect of his community.

The charges against Craig were “most definitely” overreaching by police, says Nelson, who is the new chairman of the criminal law section of the Minnesota State Bar Association. She doubts a jury would have convicted him.

But challenging the charges would have guaranteed exposure. And yet, his guilty plea offered no safe haven either.

From the moment of his arrest, Craig’s career as a conservative Republican senator from Idaho was over.

For him, there simply was no defense to the real “crime,” which wasn’t disorderly conduct. That, his constituents probably could have managed. Craig’s problem is that he now appears to be what he vehemently denies: a gay man.

To contact the writer of this column: Ann Woolner in Atlanta at awoolner [Email address: awoolner #AT# bloomberg.net - replace #AT# with @ ] .

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