The E word

By Neal McNamara

The word “entrapment” surfaces after a May 22 sting on gay cruising at Fenner Nature Center. The Lansing City attorney, at least, considers it.

“Mark” remembers going to Fenner Nature Center May 22 to eat his lunch and nothing more. He wasn’t cruising for sex with another man, he says, but he ended up getting arrested for exposing himself to an undercover police officer who was there as part of a sting to nab gay men cruising for sex. “I’m not gay,” Mark — not his real name — said. “I stopped in there for some lunch and to watch the turkeys.”

According to a police report detailing Mark’s arrest, an officer met Mark as he was sitting in his truck. Mark allegedly exited his vehicle, parked in the nature center’s parking lot, and nodded toward the officer.

“I know, based on my experience as a police officer working sex crimes, that when strangers make gestures, such as nodding their heads at strangers, it is an invitation to personally meet one another,” the officer wrote in his report.

After a few more interactions, the officer ended up nodding toward Mark’s waistline.

“I know from my experience in working sex crimes, when a person is close by and makes a gesture, such as nodding your head, it suggests to the person to expose themselves,” the officer wrote.

After the gesture, the officer wrote, Mark unzipped his pants, pulled his underwear aside and exposed his penis. Mark admits that he exposed himself in front of the officer, but only to urinate. Mark was eventually arrested for indecent exposure, which he later pleaded guilty to.

“I did expose myself, but I didn’t think it was a crime to take a leak,” he said.

The May 22 sting at Fenner netted another man — who declined to comment for this article — in which an officer asked the man, “Can I see it?” in reference to the man’s penis. After the man exposed himself to the officer, he was arrested and later pleaded guilty to indecent exposure.

The sting, arrests and subsequent prosecution of the men, have caused outrage in some quarters of the gay community. The tactics used on the men, some say, are entrapment — where a law enforcement official goads a suspect into illegal activity.

Ingham County Prosecutor Stuart Dunnings III, whose office prosecuted the men, stands behind the arrests, saying that the police did in fact target gay men, but only because that happened to be the population allegedly involved in an illegal activity — he likened the sting to police officers acting as Johns to arrest prostitutes.

“This is a traditional way of investigating crimes of sexual nature in public. And it is legal,” Dunnings said. “If they were heterosexual, they would be targeted. That’s how it works. When we have heterosexual prostitutes committing a crime, we target them; we have people dealing with drugs, we target them. If people are engaged in illegal activity, that’s who gets investigated. The police went there because people were complaining.”

Penny Gardner, president of the Lansing Association for Human Rights board of directors, thinks the sting was a form of entrapment.

“I think it’s entrapment because it was a man seeking a man. It wasn’t just going out there to try and stop sexual behavior; it was going out there to stop man-on-man sexual behavior,” Gardner said. “I think (the police) were frustrated they couldn’t catch anyone so they used the sting operation and flirted and did those things until they caught someone.”

Lansing City Attorney Brig Smith, whose office did not charge the two men arrested because Ingham County had already done so, thought about the possibility that entrapment could be used as a defense by the accused.

“When we were weighing whether to issues the charges, the entrapment comment weighed on my mind,” Smith said. “In the end, it didn’t matter, because (Dunnings’ office) had already charged them.”

Smith said that he considers entrapment an affirmative defense. But he said he would not have not charged the men because of that. Someone charged with homicide would still be prosecuted, he said, even though there’s the possibility they could use insanity as an affirmative defense.

Mindy Jones, the secretary-treasurer of the Forest View Citizens Association neighborhood group, said it was she and members of the Friends of Fenner group that first alerted police to a problem with cruising and public sex acts at the nature center. However, public records show that Lansing Police Commissioner Jan Kolp, also president of Forest View, had contacted police directly to take care of the problem.

“I am not at all homophobic, I’m very gay friendly — I’m good with it. But what I’m not good with is that I’ve walked upon people having sex in the park,” Jones said. “In mid-May there was one naked man running around Fenner in tennis shoes. It’s really gotten out of hand. I’m disgusted by the situation. Unfortunately, a few incidents have probably ruined an otherwise acceptable place for gay men to cruise.”

Gardner says that she’s not comfortable with any sting operation, be it against gay men or female prostitutes.

“There’s an awful lot of energy put into these victimless crimes,” she said.