Yesterday, the U.S. Capitol Police announced that there would be no criminal charges after a former aide to Sen. Ben Cardin (D., Md) filmed a porn scene in Room 216 in the Hart Senate Office Building.  Aidan Maese-Czeropski filmed his having sex with his partner from the members seats. It turns out that it is not even a misdemeanor to shoot a porn scene in a Senate hearing room and then post it on the Internet. The decision officially confirms for many that Congress can be legally obscene.

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.

While expressing regret, Maese-Czeropski went on to social media to suggest that much of the criticism was political or homophobic, stating that  “[t]his has been a difficult time for me, as I have been attacked for who I love to pursue a political agenda.”

When this story first broke, we discussed possible criminal charges and the potential defenses for Maese-Czeropski. As I stated at the time, one problem is the non-commercial use of the film. The video was posted to a private group for gay men and the owner identified himself as a “twink” engaging in sex acts with his older “bear” partner. The group posting does not suggest a private intimate video shared between a couple.

However, the site does not appear to generate revenue, which could have bearing on potential charges discussed above. Using the congressional space for commercial purposes can factor into possible charges.

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).”

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.” Since the room was closed to the public and no one else was present, prosecutors would have faced a strong defense on a key element for the crime. Under a broader definition, sex in a congressional office could be deemed public indecency. Yet, this was a public hearing room, albeit closed at the time, and a tape made for what appears public viewing.

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:

“After consulting with federal and local prosecutors, as well as doing a comprehensive investigation and review of possible charges, it was determined that — despite a likely violation of Congressional policy — there is currently no evidence that a crime was committed…

Although the hearing room was not open to the public at the time, the Congressional staffer involved had access to the room. The two people of interest were not cooperative, nor were the elements of any of the possible crimes met.”

What was most interesting about the statement is that it appears that Maese-Czeropski was . . . well . . . less forthcoming with police in interviews than he was with his partner on film. The police confirmed that “the Congressional staffer, who has since resigned from his job, exercised his Fifth Amendment right to remain silent and refused to talk to us.” It added “our investigators are willing to review new evidence should any come to light.”

Ultimately, this was a novel case. It was not the sex but the film that made it more compelling for criminal review. However, the Capitol police was clearly not inclined to expand the definition of terms like “purloining” to cover a porn production.

The message appears to be for staffers to be a tad more discrete in trysts on public grounds. After all, Victor Hugo once stated, “I don’t mind what Congress does, as long as they don’t do it in the streets and frighten the horses.”