Disparate Results in NJ Lewdness Arrests

A New Jersey judge who has repeatedly handed out harsh sentences to gay and bisexual men who were convicted of or pleaded guilty to violating that state’s lewdness law in the Palisades Interstate Park gave a heterosexual couple a far lighter sentence after they were convicted of violating the same statute and other ordinances in the park.

The couple, who asked that their names not be used, were arrested in the park, which stretches along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York, just before midnight on February 2 by Detective Thomas Rossi and Officer Roman Galloza, two members of the force that patrols the park’s New Jersey section.

After a 90-minute trial on July 12, Steven J. Zaben, a Municipal Court judge, found them guilty of lewdness, having open alcohol containers in the park, and failing to turn on their car parking lights when parked. Charges for littering and consuming alcohol in the park were dismissed.

The court Zaben presides over hears low level cases and traffic violations that are committed in the park

Zaben fined the man, 27, and the woman, 28, $750 each for lewdness, $200 each for the open containers and the man was fined $54 for failing to use his parking lights. He banned the couple from the park for two years.

Last year, the New Jersey park police made at least 98 lewdness arrests in the park. The vast majority of those arrested were men. Typically, the men were arrested after they exposed themselves and, in some cases, briefly masturbated in front of a park police officer.

With roughly half of those cases completed, Zaben has handed out sentences that include a roughly $1,000 fine, a five-day suspended jail sentence, one or two years on probation, a two-year ban from the park including using the highway that runs through the park and, in some cases, court-supervised psychiatric counseling. All of the completed cases, except one, have resulted in a guilty verdict or a guilty plea.

The heterosexual couple was not given a suspended jail sentence, they were not put on probation and they were not required to receive any counseling.

Unlike most of the men who have been arrested, the couple was engaged in intercourse.

“I approached the vehicle,” Rossi said at the couple’s trial. “I observed two people in the back seat… engaging in sexual intercourse.”

The officers, both in plainclothes, inspected the car after noting that it was in a park rest area without its parking lights on, a violation of park rules.

Rossi said that the man’s “erect penis” and the woman’s “lower private area” were clearly visible to him. He also saw a Trojan condom wrapper on the ground outside the car, which led to the littering charge, and that the man had a condom on his penis. There were four beer bottles in the car, two empty and two unopened. Both officers testified that the couple had alcohol on their breath.

During his testimony, Galloza said, “I got a good view of the inside… I observed the defendants having intercourse… I could observe their private parts.”

The New Jersey lewdness law makes no comment on where the violation takes place or what the lewd act is, but requires that it be “flagrantly lewd and offensive” and that the person “knows or reasonably expects to be observed by another non-consenting person who would be affronted or alarmed.”

The couple’s attorney, Joseph G. Monaghan, argued that the couple had not violated the lewdness law because there were no other cars nearby and the sex could only be seen by a person standing right next to their car using a flashlight to see the interior.

“These two people, at midnight… had no reasonable expectation that they would be observed by anyone else,” Monaghan said, and he noted a 1976 case in which the New Jersey Supreme Court, citing that reason, dismissed the lewdness charges against two men who were arrested for having sex in a car in a parking lot during the afternoon.

Both officers testified that they did not need their flashlights to observe the sex, though they did use them to see into the car.

Zaben rejected Monaghan’s argument.

“The fact is that this forum is not the forum that these defendants should have selected for this act,” he said.

Steven Goldstein, head of Garden State Equality, a statewide gay organization in New Jersey, objected to the clear differences in the sentences.

“The disparate sentencing that a straight couple got versus what gay people are getting is outrageous,” he said. “We’ve said all along that this was disparate treatment of gays versus straights and this proves it.”

Gay groups are often squeamish about confronting lewdness issues because the activity and arrests are seen as embarrassing to the wider community. While they generally will not challenge such laws—though there are exceptions—gay groups do insist that the laws be applied equally. Typically, these laws are enforced largely against gay men, as Gay City News investigations of such arrests in New York City over the past half dozen years have shown.

“This is the inherent issue,” said Clarence Patton, the acting executive director of the New York City Gay and Lesbian Anti-Violence Project. “It’s been that way with so many public lewd arrests and efforts targeting the gay community or gay activity… What happened in the Palisades absolutely points out what we have all been saying for a long time. Public lewdness laws are not necessarily the issue, but unequal application of those laws is. If this doesn’t illustrate that issue then I don’t know what will.”

Matt Foreman, executive director of the National Gay and Lesbian Task Force, agreed.

“It’s so appalling,” he said. “This is proof positive of the disparate way in which public lewdness laws are enforced across the country.”

Lambda Legal said that the two staff attorneys who had expertise on lewdness laws were on vacation and the agency could not comment.

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