Out in the Open
Steve Pinkal remembers July 6 as an ideal summer afternoon. "It was a nice day. I didn't want to be inside. I figured I just wanted to relax and get some sun," he recalls. Pinkal headed out to Pieffer's Beach, along the riverfront in St. Paul near the intersection of Eustis Street and Mississippi River Boulevard. After catching some rays in the sand, he strolled into the shade, pulled a pair of denim shorts over his Speedo, and leaned against a tree to smoke a cigarette.
The report submitted by St. Paul park ranger Rory Chavez, who cited Pinkal for indecent conduct that day, offers a different, less innocuous version of events. According to that report, Chavez claimed that Pinkal was masturbating on the public beach: "...he tried to hide what he was doing. His zipper was undone and his hand was down inside his shorts." Pinkal, age 32, maintains that the ranger's account is just plain wrong, and has retained St. Paul-based attorney Kyle White to fight the misdemeanor charge, which carries a maximum sentence of 90 days in jail and up to a $700 fine.
As White sees it, the case is about much more than what Pinkal was or was not doing with his hand that afternoon. White points out that Pieffer's Beach is known as a stretch of shoreline where gay men tend to hang out and meet and engage in occasional sexual encounters, and, as such, it has become the site of scores of arrests. Beyond taking issue with Chavez's narrative--he plans to dispute its veracity in court--White is seeking to have the charge against Pinkal dismissed, arguing that the city's indecent-conduct ordinance is both unconstitutional and selectively enforced against homosexuals.
White says that records provided to him by the St. Paul Police Department indicate that from October 1998 to September 1999, 55 of the city's 82 indecent-conduct citations--a full two-thirds--were issued in the Pieffer's Beach area. Those numbers, he stresses, suggest a pattern of discriminatory enforcement. Further, White maintains that the language of city ordinance 280.03, which concerns "nudity, indecency, and obscenity" and has been on the books since 1891, is inherently homophobic. Why? Because it includes a provision that no person can legally appear in public "in a dress not belonging to his or her sex." White says, "It's vague, it's overly broad, and it's so outdated that even the governor of the state could conceivably be prosecuted if he was wearing his feather boa."
St. Paul police spokesman Michael Jordan concedes that the number of indecent-conduct cases arising from the Pieffer's Beach area may be "skewed," but says there's a good reason for that: Police, in tagging gay and bisexual men on misdemeanor charges, are only being responsive to citizen concerns. "People in the neighborhood complained that they could not go around that beach area and not see people engaged in various degrees of sexual activity in the open," Jordan says. "It's not an issue of whether they are heterosexual or homosexual. If there were heterosexuals engaged in public copulations or other outlandish amorous acts, then they would be cited as well."
White, who has handled more than 100 such cases in recent years for gay or bisexual men, contends that one Ramsey County judge confided that he'd never encountered a case in which the acts involved were between heterosexuals. Still, by way of analogy, Jordan draws on the fact that a disproportionate number of prostitution-related arrests occur in the Frogtown neighborhood, simply because that's where prostitution is concentrated. Similarly, he says of Pieffer's Beach, "It is a place that is almost advertised for homosexuals to go."
Be that as it may, Pinkal, who since the incident has moved from New Hope to South Dakota, maintains he wasn't doing what the cops say he was: "I know back in the bushes, stuff happens occasionally...frankly, if I got caught doing something, I'd be extremely embarrassed."
White says that lately there's been a shift in how the St. Paul City Attorney's Office handles such cases. It used to be routine for first-time defendants to be granted a "diversion," or a de facto dismissal, wherein no plea is entered and prosecution is suspended; instead of handling it in the court system, those charged would agree to attend what's known as the Man to Man program at the University of Minnesota's Program in Human Sexuality. White says that the intensive weekend seminar has been helpful to many of his clients, some of whom are closeted or married men struggling with issues regarding their sexuality.
But for some reason, White says, the City Attorney's Office has become less willing to grant diversions, opting to prosecute the cases instead. At a November 1 court appearance, White plans to argue that the defense is entitled to statistics from that office regarding its handling of indecent-conduct cases and to seek a hearing to address his contention that such cases are being selectively prosecuted.
Deputy City Attorney George Stephenson, who heads the criminal division, says there has been no change in how his office handles such cases--they just pursue the ones that come across their desks: "We certainly do not discriminate when we're in the process of determining whether a case is going to be prosecuted." But he does confirm one of White's points: "When you're talking about indecent-conduct cases involving sexual activity, the overwhelming majority of those cases involved same-sex activity, homosexual activity." Why? "My guess would be that law enforcement is responsive to community complaints."
For his part Pinkal never envisioned himself caught in the middle of a constitutional imbroglio. But now that it has happened, he says, "I'm starting to feel more and more if you don't stick up for yourself and gay rights that gay people are going to keep getting harassed."
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