"Mr Berger, What is the penalty for violating the bathroom portion of HB2? Thanks in advance for answering my question."
Senator Berger never answered my question. My guess is he is now wishing this whole thing had never happened, especially now that Greensboro's Eric Fink, a professor at Elon Law, has decided to challenge him in what would have been an unopposed run for office.
Mr Berger wanted you to believe that North Carolina's women and children are unsafe in public restrooms. And to make his case he wrote a letter dated February 24, 2016 to North Carolina Attorney General Roy Cooper expressing his views.
Now to be clear, I don't believe people are safe in public restrooms either. In 1971, as a 15 year old high school student at James B Dudley High School in Greensboro, NC, I was beaten almost to death by a gang (8-10 total) of young men from off campus for reasons I've yet to learn in over 40 years. I was found lying on the floor in a pool of my own blood by then Assistant Principal Bradley.
Rape and peeping aren't the only things that happen in public restrooms. In case you are wondering it was the boys room in the South Annex of the school. I was where I was supposed to be.
Because of that and other violent incidents I have suffered from PTSD for over 40 years. PTSD is what you can expect for anyone who suffers any sort of traumatic incident inside a public restroom. That is, if they are lucky. If they are not lucky it could be far worse.
In his letter Senator Berger wrote:
"We have grave concerns over the recent changes made to Charlotte’s Code of Ordinances by the Charlotte City Council. The most concerning change allows men to share bathrooms and showers with women and young girls in places of public accommodation, violating existing criminal law. "
Now if true that is indeed very troubling. I don't think that anyone wants to see grown men showering with little girls with the exception of some perverts. By the way, while the Senator says the Charlotte Code of Ordinances violates existing criminal law he doesn't note which, if any laws are actually violated. Now considering that Senator Berger is a licensed, practicing attorney at law in North Carolina writing an official document to the NC Attorney General that seems... Well, troubling.
The Senator goes on to say:
"The brazenness of this policy decision is shocking, and your silence on the matter is deafening. Until the General Assembly can act, it is your duty, as our state’s top law enforcement official, to ensure that Charlotte follows the law."
You can bet it's shocking. If my son were still alive I'd be concerned for his safety. In his letter Senator Berger spends the next several paragraphs comparing Charlotte's new ordnance to Charlotte's old ordinance. Obviously the Senator is unhappy but he recommends no real course of action. He cites NC. S.M.S, 196 N.C. App. 170 (2009) (affirming adjudication of second-degree trespass after boy entered girls’ locker room that was marked accordingly). but in that very case, while the court ruled against the defendant the court also noted that the school should have never brought the kid to trial in the first place and had within its means the disciplinary ability to handle the case outside of the courts.
(Oops, there's another one for the anti- School Resource Officers movement.)
You see, as I pointed out previously in HB2 Opinion Vs Fact there are no existing laws preventing men from walking into women's restrooms in North Carolina. There should be but such laws do not exist. I provided all the documentation necessary to prove my point.
NC Senator Phil Berger knew it too. He admired it in his letter to Roy Cooper when he wrote:
"A patchwork of criminal law simply will not do. We cannot have acts that are criminal in one city or county but not in the others. The General Statutes expressly prohibit municipalities from passing ordinances that violate the general criminal laws. See N.C. Gen. Stat. § 160A-174. In other North Carolina cities, a man’s use of a designated women’s facility subjects him to
potential criminal prosecution. "
But wait, what about N.C. Gen. Stat. § 160A-174, it prohibits men from going into women's restrooms, right? N.C. Gen. Stat. § 160A-174 in it's entirety:
"§ 160A-174. General ordinance-making power.
(a) A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.
(b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
(1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
(2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law;
(3) The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;
(4) The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law;
(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation;
(6) The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law.
The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition. (1971, c. 698, s. 1.)"
That's right, Charlotte couldn't and didn't make a law that violated State law because there was no such state law. The City of Raleigh has it's own municipal law:
"Sec. 13-2015. - TOILET FACILITIES; USE BY SEX FOR WHICH NOT INTENDED.
On public or on private property used by the public or patrons of a business establishment where separate toilet facilities are provided for the use of different sexes and such facilities are conspicuously labeled to give notice of the sex for which the facility is set apart, it shall be unlawful for a member of one sex to enter or use a facility provided for members of the opposite sex. Provided this section shall not be construed to prevent the inspection of toilet facilities by the owner or person in charge thereof or the designated agent of either, nor to prevent the performance of janitorial services therein by the person or persons designated to perform such services when members of the opposite sex are not present"
Other North Carolina cities and counties have their own municipal laws as well but by Phil Berger's own admission in his letter to NC Attorney General Roy Cooper, Berger wrote:
"A patchwork of criminal law simply will not do. We cannot have acts that are criminal in one city or county but not in the others."
The Senator also wrote:
"In other North Carolina cities, a man’s use of a designated women’s facility subjects him to potential criminal prosecution. "
Thereby noting State law was and remains inadequate as North Carolina is dependent on a "patchwork" of municipal laws.
But when it came time to pass a law Republican Senator Phil Berger and the rest of the conservative North Carolina House and Senate chose to pass House Bill HB2, a "law" with no criminal penalties for men who go into women's restrooms.
Now for those of you still pointing fingers at Roy Cooper-- what was he to do? The job of the attorney general is to enforce the law but not even Senator Phil Berger, himself a licensed, practicing North Carolina attorney at law can tell you what law was broken. It's the job of the State House and Senate to make laws, Phil Berger even admitted that in his letter as well:
"Until the General Assembly can act, it is your duty, as our state’s top law enforcement official, to ensure that Charlotte follows the law."
What law? The General Assembly had to meet in special session to pass a new law to strike down Charlotte's new city ordinance. Berger was just playing the blame game along with Sen. Buck Newton, Sen. Shirley Randleman, Sen. Warren Daniel and the rest who jumped on the pee-pee bandwagon hoping to score a few more votes from scared voters.
Don't believe me? Click here to read the letter for yourself.
We need a law. We need a law that protects people. We need a law that protects all people without discriminating against anyone. And what we don't need are politicians passing new laws under the guise of protecting people while secretly taking away other rights at the same time.
