U.S. Capitol Police is investigating the shocking videotape of two men having sex in public in what appears the Senate large hearing room in the Hart Senate Office Building. The room is familiar to many citizens from Supreme Court confirmations to impeachment proceedings. Indeed, I have testified repeatedly in the room and argued much of the Porteous impeachment case in that space. First reported on a conservative site, the video of two men having sex has led to unconfirmed reports that one of the individuals is a staffer for Sen. Ben Cardin (D., Md.).
The video shows one of the men hunched over the dais at the center of the seating for senators in Senate room Hart 216.
The video was reportedly shared on the Internet on gay sites.
Obviously, the videotape will result in the termination of any staffers involved. However, the question is any possible criminal charge. We have previously discussed porn videos shot in churches or other locations. Such porn shoots in church have also raised calls for prosecutions in other countries.
Staffers have access into such rooms, but the question is whether this unofficial use would constitute trespass. It also uses an official area for personal purposes, though it is not clear if there were any commercial benefits garnered from the video found on various sites.
One obvious criminal provision under the D.C. code is Section 22-1312 for lewd, indecent, or obscene acts:
“It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act as defined in § 22-3001(8). It is unlawful for a person to make an obscene or indecent sexual proposal to a minor. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01, imprisoned for not more than 90 days, or both.”
The question is whether this is “in public” in a locked committee room — any more than sex in a congressional office after hours would be viewed as “in public.”
There are also provisions concerning the misuse or damaging of government property such as Section 1361, which protects “any property” of the United States from willful depredation or attempted depredation. “Depredation” is defined as the act of plundering, robbing, pillaging or laying waste. However, mere possession of such property is not viewed as depredation. United States v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977).
There is also 18 U.S.C. 641 on the misuse of public money, property, or records:
“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.”
The Capitol police could argue that this constitutes purloining or using government property for personal purposes.
The key factor is the fact that this videotape was made with the apparent intent to publish or show others. Sex in congressional offices — by both members and staff — have long been known to occur on Capitol Hill. Yet, this was a public hearing room, albeit closed at the time, and a tape made for what appears public viewing.
That brings us back to trespass. The question may be whether this was access under legal authority for a staffer. The Capitol police can argue that access to a staff position does not mean a license for entry for any purpose. Under 18 U.S.C. 1752, trespass covers anyone who “knowingly enters or remains in any restricted building or grounds without lawful authority to do so.”
Does a staffer have legal authority to enter any hearing room for any purpose? That could be a defense raised by counsel, but it would seem likely that any access is premised on an official function.
The pressure on the Capitol police is likely to be considerable in the coming days. Only recently, House members Rep. Alexandria Ocasio-Cortez, D-N.Y., and Rep. Jamie Raskin claimed that house rules were broken by Rep. Marjorie Taylor Greene showing Hunter Biden and a woman in a revealing picture, though he was purportedly wearing a swimsuit. Raskin objected that it would constitute “pornographic exhibits that might not be suitable for children watching.”
While this was not a public hearing, those objections now seem almost puritanical in light what just occurred over in the Senate hearing room.