Now that you, the presumed reader of the foregoing “Idle and Disorderly Statute: Part I,” know more than you ever wanted to know about our embarrassment of a disorderly conduct statute, let us now move on to examine just how unconstitutional its least-constitutional subsection is.

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

At worst, behavior sufficient to constitute “accosting and annoying” is pretty much just what it sounds like: criminal sexual harassment. There are only about a half-dozen appellate cases interpreting this, but it amounts to (1) “offensive or disorderly conduct” (2) intentionally directed at (3) a member of the opposite sex.

Such conduct can range (the following are all actual reported cases) from the truly scary (i.e., posting super-creepy “Wanted” posters of your ex-girlfriend around your high school) to the understandably irritating (unwanted hugs, backrubs, and verbal come-ons from a coworker which could have been addressed under existing civil sexual harrassment law), to old-fashioned indecent exposure to very-nearly victimless crimes (singing showtunes in the general direction of a teenage girl while leering at her).  I’m not saying that most of these offenders should have gone entirely unpunished, but only that there has to have been a more Constitutional—and slightly less Puritanical—way to charge them.

There is an obvious potential First Amendment problem automatically raised in any law which permits criminal prosecution based solely on non-threatening speech toward another. But I can acknowledge that this is more of an “as applied” challenge, given that the majority of speech for which someone may be charged under this statute is probably not protected by the First Amendment.

I am far more concerned that there is a really serious inherent equal protection violation built right into the statute for as long as the “opposite sex” element of Sec. 53 remains.

Here’s how it works:

I don’t know about you, but I, dear reader, have been accosted and annoyed by a member of the same sex. Maybe it’s my boyish good looks, my full head of hair, or the femme-y, Ira Glass-y, nasal I slip into when I start to get excited and run my words together, but there it is. I think “annoyed” is really the right word; I really don’t care, and it’s nothing to call the police over.

But you see the problem: Even if I wanted to, I couldn’t! There’s no crime! By criminalizing what I will call from this point forward “sexual harrassment” of the opposite sex, our legislature has by exclusion condoned and permitted sexual harrassment of the same sex at will throughout the Commonwealth. Obviously, this was not an intentional outcome, but only a natural consequence of keeping a 400-year-old statute on the books.

Public admissions and/or displays of homosexuality would have been wholly unthinkable to the Puritans of the Massachusetts Bay Colony. Women, as the “weaker sex,” required the vigilant oversight of their male providers and protectors. This is the world into which Sec. 53 was born, and the world in which it should have died. Instead, it fell on some ice.

As you may have heard, the gays have been a’marryin’ in healthy numbers here in the Commonwealth in the five years since the SJC affirmed everyone’s right to marry in Goodridge v. Dept of Public Health. As a true believer in stupid old liberal cliches like the right to privacy and equal protection under the law–not to mention that hippie pabulum about how maybe love really is all you need–I’m willing to bravely face the open threat that this ruling no doubt continues to pose to the domestic tranquility I now enjoy with my own heterosexual life partner. (We’ve made it so far, anyway…)

My point, however, is that I was particularly struck by the following observation in Justice Greaney’s Goodridge concurrence:

A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people.

While I must repeat again my unconditional support for equal marriage rights, I am compelled to point out that the above logic does compel the conclusion that Sec. 53 may be the only law currently in force in the United States which unfairly burdens heterosexuals. Simply put, heterosexual victims of opposite-sex advances may receive the full protection of our law enforcement system, while their counterparts on the receiving end of same-sex advances may not. Or, as I recently wrote in far more words:

The accosting and annoying provision of [Sec. 53] as it now reads is impermissibly and unconstitutionally underinclusive, in that it excuses an entire potential class of perpetrators while concurrently failing to protect their victims solely on the basis of their respective genders. As such, this provision’s strikingly anachronistic, unmistakably paternalistic, and quintessentially Puritanical language and intent are outshone only by the luminous glare of its arrant unconstitutionality.

I am not the first to make this argument, and I expect that I will not be the last. At the very least, the phrase “of the opposite sex” needs to go. At best, I’d like to see the entire “accost and annoy” provision removed if and when the legislature ever gets around to redoing Sec. 53 as fully and comprehensively as the SJC has asked them to.

Matt Cameron