When can a sexual act be regarded as having taken place "in private" as the public decency laws in most places require? I do not ask for purposes relating to any activities of my own, you understand, good heavens no. As always with Language Log posts, a linguistic point has center stage.
An Italian judge recently ruled that having sex in the toilet at a bar does not breach public decency laws, so long as the door to the stall is shut. (The story has been spread around the world by Reuters.) A Swiss couple were accused of committing obscene acts after the owner of a bar in the northern Italian town of Como caught them having sex in the john. State prosecutors demanded a six-month prison term for the male defendant and a five-month term for his partner. (Why the one month difference? Who knows. Perhaps she was a naive innocent who showed instant remorse and and he was an evil seducer who accused the arresting officer of being a sexless fascist meathead.) Anyway, in this case what seems to me like intuitive common sense prevailed: Judge Luciano Storaci threw out the case, saying public decency was not offended because the door was closed.
This seems so obviously right that one wonders how the interior of a toilet cubicle when the door is shut could ever be considered other than private. How has it been possible for so many people to be successfully prosecuted for the offense of engaging in sexual acts in surroundings that are not only unobservable to passing members of the public but are protected by physical arrangements whose whole purpose is to ensure privacy for excretory acts? If the sex does not count as being in private, how on earth can it make sense for more normal uses of a public toilet not to yield prosecutions for defecating in public?
I'm not a lawyer, but it seems to me that the answer is likely to lie in the interpretation of public decency statutes that in their references to sex use the highly polysemous word private. Webster's Third lists its several senses in this order:
| 1 | a : | intended for or restricted to the use of a particular person or group or class of persons : not freely available to the public |
| b : | belonging to or concerning an individual person, company, or interest | |
| c (1) : | restricted to the individual or arising independently of others | |
| (2) : | carried on by an individual independently rather than under institutional or organizational direction or support | |
| (3) : | being educated by independent study, under the direction of a tutor, or in a private school | |
| d (1) : | affecting an individual or small group : RESTRICTED, PERSONAL | |
| (2) : | affecting the interests of a particular person, class or group of persons, or locality : not general in effect | |
| e : | of, relating to, or receiving hospital service in which the patient has more privileges than a semiprivate or ward patient (as in having his own doctor, a room to himself, and extended visiting hours) | |
| 2 | a (1) : | not invested with or engaged in public office or employment |
| (2) : | not related to or dependent on one's official position : PERSONAL | |
| b : | of military personnel : of the lowest rank : having attained no title of rank or distinction | |
| c (1) : | manufactured, made, or issued by other than government means | |
| (2) : | issued by private not public authority but acceptable as money either because of intrinsic value or exchange value guaranteed by issuer d of clothing : CIVILIAN -- used especially by the Salvation Army | |
| 3 | a : | sequestered from company or observation : withdrawn from public notice |
| b : | free from the company of others : ALONE | |
| c : | not known publicly or carried on in public : not open : SECRET; especially : intended only for the persons involved -- compare CONFIDENTIAL | |
| d : | having knowledge not publicly available : holding a confidential relationship to something | |
| e : | obsolete : peculiar to a particular person | |
| f : | being or considered unsuitable for public mention, use, or display -- used especially of the genital organs |
The space inside your toilet cubicle is certainly private in sense 3b, "free from the company of others"; but not in sense 1a, "not freely available to the public", since any member (or couple of members) of the public can use the same facility as soon as the previous person has finished doing whatever the hell it is that they're doing in there. The details of exactly what is meant by being in private or in public would have to be spelled out in very careful detail in any relevant law. And of course there are thousands of such laws, specific to states, provinces, counties, or cities, and they won't be all that carefully written, because (a) laws generally aren't very carefully written anyway, and (b) laws governing any kind of behavior that someone could think lewd are likely to get even less scrutiny than a tax cut, since no legislator who wants to get re-elected is going to stand up and quibble if that would appear to put him in the position of arguing for the likes of couples who want to be free to slip into the john for a quick screw. And (some Italian reader correct me if I'm wrong) Judge Luciano Storaci probably doesn't have to run for election. An American county court judge who has to gain public support for re-election to keep his or her job might not have been as inclined as Judge Storaci to dismiss a public indecency case.
Posted by Geoffrey K. Pullum at October 10, 2004 04:59 PM