commentary
Beyond the Briefs
Stripping the pants off a sex-harassment claim
Published Thursday, 12-Jun-2008 in issue 1068
California has a $16 billion deficit, but, apparently, there’s enough money to pay state park rangers to arrest nude sunbathers on San Onofre State Beach, where rangers complain that nudity has created a “sexually charged” atmosphere in which they are not comfortable.
Nudity on state beaches has been banned since 1975; although, then Governor Jerry Brown tried to make clothing-optional areas on some state beaches, so that folks could decide for themselves whether to go. But right-wing zealots who equated nudity with sex pressured Brown, now attorney general, against doing so. The result was a compromise that has worked for decades: In 1979, former Parks and Recreation Director Russ Cahill issued a directive to his senior managers not to designate “clothing-optional” areas in state parks. Cahill’s directive required that, instead, rangers would only issue citations for nudity if someone complained.
The 1979 plan worked well, and a 1,000-foot tract on San Onofre State Beach has been a home to naturists ever since.
Rangers, however, complain that the remote enclave is attracting 2.5 million visitors per year, and they have prevailed upon Ruth Coleman, Director of California State Parks, to order a crackdown on public nudity at the beach. The rangers claim that there is not just nudity at the beach, but also “frequent illegal public sexual activity.” They say that, because of that “sexual activity,” the state forces them to work in a sexually hostile environment.
Of course, this is just a pretext for homophobia.
When law enforcement talks about “public sex” it’s code for “gay sex.” If the persons having sex on the beach were the babes from Girls Gone Wild, it’s a fair bet the straight male rangers wouldn’t be complaining about a “sexually charged” environment. After all, public sex has occurred on our beaches since the beginning of time. And, as crime statistics show, the only time the law against it is enforced is when it involves two males. In fact, this is so widely known that the California Supreme Court ruled that enforcing such laws only against gay men is a violation of equal protection.
Yes, we all agree that lewd conduct is indefensible. And if there is lewd conduct occurring in public view, rangers should enforce the law, or, at least, partner with the Sheriff’s Department, which has more training in the area. But to say nude sunbathers have to go because the beach is “sexually charged” is untenable under federal or state law.
Further, state rangers, like all other law-enforcement personnel, pledge to enforce laws that relate to “public morals.” There are no cases in which any court has recognized a hostile work environment claim because an officer had to enforce vice laws – not even for religious reasons. That’s because the nature of the job is clear to the job prospect before he or she applies. In other words, rangers know that sex and sex crimes occur on state beaches and in state parks; it’s a complete perversion of the law to suggest that requiring one to investigate such is a form of harassment. To see how absurd this is, imagine a complainant approaching a ranger for help in addressing lewd conduct on the beach: “Mr. Ranger, there’s a man in the park exposing himself to young girls. Can you help us?” the distressed person might say. “No, I don’t do sex crimes. And stop harassing me,” the ranger replies.
It’s this kind of ridiculous thinking that’s led this state into such a dire financial situation. (Don’t be surprised if the Legislature allows “harassed” rangers to retire early at 120 percent of their current salary.)
Voters elected Governor Schwarzenegger because we knew he would bring an entrepreneurial spirit to this state. Look at his rationale for supporting same-sex marriage: It’s money. So why isn’t he capitalizing on San Onofre? Shouldn’t he be saying, “Gosh, there are 2.5 million visitors to a small state beach. We should put fences around it, charge for parking and admission, and sell concessions. And with the hundreds of millions we make, let’s reduce student fees at UC and CSU schools.”
After all, we’ll need to reduce fees if students are going to get the education they’ll need to make up for the stupidity of the leaders of this generation.
Robert DeKoven is a professor at California Western School of Law.
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