Sex in the Sauna Not Constitutionally Protected?

On May 30, a panel of the U.S. Court of Appeals for the 9th Circuit affirmed the denial of a writ of habeas corpus, thus rejecting a challenge by Jack Keith Cook to an Idaho court's determination that he violated that state's "infamous crime against nature" statute, Idaho Code sec. 18-6605, by having sex in a gym sauna.  Cook v. Reinke, 2012 Westlaw 1941928.

Cook sought the protection of federal constitutional law under Lawrence v. Texas, the 2003 U.S. Supreme Court decision that held that private, consensual adult gay sex could not be penalized under state law.  Cook's defense was that the conduct at issue was consensual and private.  He argued that the gym was a private club, with admission limited to members, and that his partner had consent to sexual contact in the sauna.  The Idaho Court of Appeals, affirming Cook's conviction, accepted that Lawrence would prevent convicting him for engaging in private consensual sex with another man, but found that the conduct was neither consensual nor private.

In rejecting Cook's petition for habeas relief, the court noted that its task under the Antiterrorism and Effective Death Penalty Act of 1996 (which sets the parameters of federal court habeas review of state criminal convictions) was to determine whether the state court's application of federal constitutional law was "unreasonable," not whether it was correct.  The question for the court of appeals would be whether Cook was claiming a firmly established constitutional right.

In this case, the state court viewed a sauna in a membership gym as a "public place."  "Whether the encounter occurred in public or private is a mixed question of law and fact," wrote the 9th Circuit panel.  "The state court concluded as a matter of law that the encounter occurred in public based on the factual determination that the conduct occurred 'in the sauna of a local gym.'"  The court decided that the Idaho court's legal conclusion would survive judicial review, because "Cook cites no clearly established U.S. Supreme Court precedent on whether a gym or club should be considered private or public as a matter of federal constitutional law."  Since Cook had conceded in briefing to the trial court that the encounter occurred in the sauna of a gym, the federal court could not fault the state court's finding as to the factual circumstances.  Although Cook described the gym as a "private club" during the trial court's acceptance of his plea to the charge, the court of appeals said that this description "does not determine for purposes of Idaho law whether the conduct was in public or private."

The 9th Circuit panel concluded that because Cook's conviction could be sustained on the ground that the conduct was in public, there was no need to address his argument that the Idaho court erred in finding lack of capacity to consent by his sexual partner.

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