Intent to Arouse

Dallas swingers learn that an ill-timed grope can lead to a date in court

Resnick argued no sexual contact occurred because the officer had his pants on and, therefore, Resnick never made contact with the officer's penis. But the court disagreed, concluding that contact means "to perceive by the sense of feeling" and that the "interposition of a layer of fabric" is not a sufficient defense.

Although that case involved an undercover police officer, it still applies to ordinary folks who might be tempted to cop a quick feel on the dance floor. But there's still a catch--the touching has to be done with the intent to arouse or gratify the sexual desire of any person.

In the 1986 case of Balash vs. State, police observed Balash "rubbing [the] genitals of her male dance partner through his trousers at a local nightclub." Unfortunately for her, the man was smiling at the time. In that case, the courts ruled that the police could reasonably infer from the man's smiling that Balash had "intent to arouse or gratify her own sexual desire, as a necessary element to her conviction of offense of public lewdness."

The Balash case means that the ball is in the cops' court when it comes to deciding whether someone is getting aroused on a dance floor, providing, of course, that some illegal contact is going on. (In other words, if your mate ever grabs your crotch on the dance floor, look sad, unless you want him or her to spend the night in jail.)

In Dallas, the job of judging intent often comes down to the two fellows who are seated inside a booth at Baker's Ribs in Deep Ellum. They are vice cops, and they asked that their names be withheld, given the nature of their undercover work.

With their Ken-doll good looks, these two are certainly evidence to the theory that the police recruit good-looking cops to work vice. Lowering their voices so as not to disturb nearby diners, the officers are happy to discuss intent.

"Say if you reached over and grabbed me to see if I get a hard-on. That's intent, intent to arouse," the first officer says, locking his eyes on a man passing by with a plate stacked with ribs. "If that man right there reaches over and grabs your tit and keeps walking, that's assault. He just wanted to grab your tit."

"When people normally greet people, they shake," the second officer adds. "They don't walk up and grab each other's crotch just to say hi."

And that, to these officers, is what separates swingers' clubs from the rest of the nightclub pack. On the night of the Jet Set raid, they and two female officers assigned to be their "dates" arrived at the club shortly before 9 p.m. The four took a table and watched the activity. Occasionally they danced, in order not to arouse suspicion.

"A lot of this activity initiates on the dance floor. They start the light petting out there, and it goes from there," the first officer says.

The two officers stress that they have a high tolerance for various behaviors, and that they let many risque acts slide.

"The petty stuff, we don't enforce that. If someone comes behind you and puts their hands on your breasts, we don't enforce that. We want the hard-core cases," the first officer says.

"My 'date' was touched several times on the dance floor," offers the second officer. "None of those people were taken to jail that night."

After two hours, shortly before midnight, there was so much sexual activity going on among the 150 or customers that the officers decided to call for backup.

"It overwhelmed us. It was all taking place so quickly, we had to cut it off," the first officer says.

The behavior they witnessed indeed was not petty. The most sensational of all the acts, of course, were the three alleged cases of oral sex, which were supposedly taking place in an especially dimly lit corner of the bar.

But the meat of the bust involved nine people who were dancing as a group. According to the police, this friendly mosh pit featured two women with their tops off and lots of probing fingers and roaming hands. One couple was arrested after the husband lifted up his wife's shirt and rubbed her breasts. Naturally, she wasn't wearing a bra.

To Capt. Walt, the arrests are simple to justify. Because the Jet Set holds a state liquor license, it is a public place. And as long as public lewdness is against the law, Walt says, his unit will continue to police the behavior.

"For the most part, if they set up private parties in private houses, we don't care. As a matter of fact, that's a great idea for that sort of thing," Walt says. "Our only concern is when they start doing these activities in public. That includes when they start opening a house to the public and charging admission."

Although swingers complain that the arrests are a waste of time and taxpayer dollars, Walt says his unit's routine monitoring of swingers' clubs represents a very tiny portion of its enforcement activity.

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