|
Last edited: August 10, 2004
| |
The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2002
Ohio
"To set this standard by what is natural to the
community’s pariahs is to say that the abnormal should be the standard,
and the normal and natural might become the peculiar to some few
persons."
The Post-Revolution Period, 1776-1873
Ohio was created out of the Northwest Territory. A Council was created to
enact laws and, in 1795, it adopted a statute1
that received all of the common law of England as well as all English statutes
adopted prior to the English settlement of North America in 1607. This
included the English buggery statute that mandated a sentence of death for
male-male buggery. This statute created "endless confusion" as to
what was legal and what was not.2
After statehood, this law was repealed by a statute of 1804,3
thus legalizing sodomy.
This legalization didn’t last long. Just six weeks later, in 1805, the
common-law reception statute was reenacted verbatim,4
apparently to last until the state’s first criminal code took effect.
The new code5 made no mention of sodomy, the
legislators apparently believing that the common-law statute was sufficient,
creating the possible circularity that the common-law statute was to last only
until the code became effective, but, once the code was enacted, the
common-law statute was kept to cover other crimes not mentioned in the code.
Be that as it may, in 1806, the reception statute again was repealed,6
this time permanently. Sodomy again became legal in the state. Despite this
repeal, there was dispute in legal circles as to whether the state recognized
common-law crimes. The Ohio Supreme Court settled the dispute in the 1823 case
of Key v. Vattier.7 The Court found the
1806 repeal persuasive and ruled that the state did not recognize common-law
crimes.8
For almost a decade, sexual relations between some women (but not men) may
have been illegal. In an 1815 criminal code revision,9
the adultery provision barred a married woman from having "sexual
intercourse with other person" [sic] [Emphasis added] than
her husband, but prohibited a man from such intercourse only with women.10
This law was changed in 182411 so that
"other person" became "any other man[.]"12
Over the next six decades, there were numerous acknowledgements that sodomy
was not a crime in the state, yet there was no legislative action taken to
change that fact. Among those acknowledgements: a treatise on Ohio criminal
law made no mention of sodomy,13 four slander
cases decided between 1856 and 1880 stated that sodomy was legal in the state;
a rape statute of 187414 that eliminated the
need to prove emission (rape and sodomy usually were lumped together in
statutes of other states on this matter); and a codification of state law in
187715 that placed all criminal laws together
in one volume. In this new code, the absence of a sodomy law escaped the
notice or care of the entire legislature.
There are a few newspaper reports of same-sex erotic activity, but its
punishment is unclear. In 1855, two "young men" were found
"stripped naked" in a puddle after a rainstorm. The paper added,
sarcastically, that it "is supposed they were cleaning out the
gutter." Nothing states that they were prosecuted.16
In 1867, a man was arrested for "a ruffianly outrage upon a boy,"
but he only was "provided with lodging for the night."17
In 1870, two men were fined $10 for unspecified "lewd conduct" with
each other.18
Period Summary: Although Ohio received sodomy as a crime via the
English common law while still part of the Northwest Territories, early as
a state, common-law crimes were abrogated. No sodomy law was enacted by
the legislature during this entire era, although the reason for this
remains unclear. Despite several court decisions in slander cases pointing
out that sodomy was legal in the state, there apparently was no attempt on
the part of the legislature to change that fact. Even a newspaper article
on an apparent sexual assault by a man on a boy did not prompt action.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1876, Ohio amended its obscenity law19 to
include any instrument used for "self-pollution," which would
include any sex toy. Justices of the peace were given the duty to
obtain a search warrant against "any person that [sic] he has good
cause to believe" was in possession of such an instrument.20
There is evidence that, when sodomy finally was criminalized, it was done
so only as a political maneuver. In 1885, a law was enacted21
that established a penalty of up to 20 years in prison for "carnal
copulation against nature[.]"22 At this
time, the Governor of Ohio had no veto power and thus was compelled to sign
every bill the legislature passed. The Ohio Governor forced to sign this law
was George Hoadly, who may have been Gay.23
If statistics from the 53 years of 1885-1937 (when penitentiary records are
available) are representative, the reported cases are only about 2% of total
sodomy cases in Ohio. In those years, there are six reported sodomy cases, but
325 men were imprisoned on sodomy charges in the Ohio Penitentiary alone.24
The first reported case under this law was Foster et al. v. State,25
from 1886. Three men had been arrested on charges of a sexual assault on
another man. The conviction was overturned because of the admission of hearsay
evidence into their trial.26 In dictum, the
Court created a twist that would become important in Ohio legal history. It
was
plain that when the act charged is copulation against nature, that at
least one of the parties to it must be a male person.27
Lesbians received an early exemption from prosecution.
There were a total of seven men convicted of sodomy who received pardons or
commutations from Ohio Governors, all of them between the years 1887 and 1913.28
Ohio, which had been the third-to-last state to criminalize sodomy, became
one of the first to expand its law to cover oral sex. A statute of 188929
reworded the prohibition in an odd manner.
That whoever shall have carnal copulation in any opening of the body,
except sexual parts, with another human being, or with a beast, shall be
deemed guilty of sodomy, and shall on conviction thereof be imprisoned in
the penitentiary not more than twenty years.30
This law clearly was attempting to cover sexual activity in a mouth.
Curiously, there was an attempt by one member of the Ohio House of
Representatives to defeat this bill.31
Even though this law expanded the reach of the sodomy provision, there was
an obvious problem, according to law enforcement officials, as to coverage of
certain same-sex activity. In 1891, a man accused of sexually assaulting
another was not prosecuted, and the man who accused him of assault was fined
for "slugging" him in retaliation.32
In 1893, one man arrested for "an unnatural crime" received only a
fine of $50 and 30 days in the workhouse. The newspaper report lamented that a
"defect" in the state’s law prevented the court from giving a more
severe sentence.33 In 1898, a man arrested for
proposing "a nameless crime" to a boy was sentenced only for
disorderly conduct and exposure of person.34 In
1900, a man arrested for forcing a 13-year-old boy "to submit to obscene
practices" nevertheless received only four months in a workhouse and a
fine of $100.35
In 1894, the "sex toys" law was amended36
to eliminate reference to "self-pollution," but replaced it with the
broader "instrument or other article of an indecent or immoral
nature."37
A bill was introduced in 189838 to state
that
whoever induces, invites, decoys or procures a male person under
eighteen years of age to have sexual intercourse with any person, or to
enter any house of ill-fame, or knowingly permits such person to have
illicit intercourse with another upon any premises owned or occupied by
him, or any keeper of a house of assignation or ill-fame, who detains or
harbors therein any male person under eighteen years of age shall be
imprisoned in the penitentiary not more than five nor less than two years.39
The bill passed the Senate after the penalty was reduced to a misdemeanor,
and was reported out of House committee, but went no farther.
In 1906, a text on Ohio law40 discussed how
sodomy was viewed in Ohio courts, presumably from cases prosecuted, even
though they were not reported. The crime could be committed
between two human beings, as between two men, a man and a woman, a man
and a boy, a man and a girl, two boys or a boy and a girl where of that
age when capable of the crime. [Footnote omitted]41
Thus, female-female contacts were not recognized. The book also said,
without citing an authority, that each party to an act of sodomy was equally
guilty42 even though the wording of the 1889
statute was that the crime was inserting into an opening, not receiving into
an opening. Indictments or informations did not have to be specific.43
Evidence of a "general disposition or inclination to commit such offenses
is not competent."44
In 1908, a law was enacted45 to create a
probation program. Eight crimes were considered so heinous that probation was
prohibited absolutely for them. One was sodomy.46
The year 1910 turned out to be pivotal in the wording and interpretation of
the state’s sodomy law. First, a bill was introduced47
to insert the words "any opening of the head" into the language of
the sodomy law48 so as to make clear that
fellatio was illegal. This bill passed the House, but was not considered by
the Senate.
Also in 1910, the state recodified its laws.49
The commission charged with recodifying the laws was permitted to suggest
material changes and the sodomy law was one that was revised. The only change,
however, was to reverse the order of "human being" and
"beast" to make absolutely clear that any sexual activity
with an infrahuman animal was illegal. There was no legislative attempt to
clarify that fellatio was intended by the 1889 law. That became unnecessary
later the same year.
In 1910, in Franklin v. State,50 an
appellate court determined, in a brief and unusually non-judgemental opinion,
that fellatio was prohibited by the statute as worded more than two decades
before. The court said that "we think the purpose of the enactment of
this statute was to punish this unnatural crime[.]"51
Another case from 1911 decided the same issue. The court deciding State
v. Price52 was unfamiliar with the Franklin
case of six months earlier, making no reference to it and saying that the 1889
law "has never, so far as I have been able to learn, been construed by
any Ohio court."53 This Court was equally
non-condemning. It concluded that
to hold that the term "body" in this statute does not include
the head, and that consequently carnal copulation by the mouth was no
crime within the statute, would be to give the term "body" a
"severe and technical application," and one very forced and
artificial.54
In 1915, one man was sent to the State Reformatory for "sodomy"
even though the records show that the erotic activity involved was
masturbation, an act clearly not contemplated by the sodomy law.55
The next reported case was the first from the Ohio Supreme Court. In 1922,
in Barnett v. State,56 the Court
expressed very moralizing views and, even though this was a heterosexual case,
again gave an interpretation of the scope of the sodomy law that showed
discriminatory applicability. The opinion by Justice Reuben Wanamaker, a
virulent homophobe,57 said that
it is self-evident that the crime of sodomy was committed by someone;
that a moral degenerate committed it; and that the particular type of
degenerate engaged in the commission of that crime was a sexual pervert.58
It was
more or less a matter of common knowledge among those who have made a
study of sexual perversion as it manifests itself in human degenerates
that each sexual pervert follows some habitual, unnatural method of
gratifying his perverted passion. It may be unnatural commerce with one
class of beasts or another class of beasts; it may be by one mature male
upon another mature male; and it may be, which is today of too frequent
occurrence, a degenerate sexual commerce with little boys or little girls.59
The "sexual pervert," like the professional bank robber
as a general rule, confines himself to a certain limited line, a
certain habitual form of sexual degeneracy, from which he rarely, if ever,
departs; and those methods that he habitually employs leave their indicia,
their footprints, or fingermarks, their traces, in one form or another, of
his personal criminal identity.60
In 1926, in the case of Wrae v. State,61
an appellate court reversed a sodomy conviction because the prosecution had
other males with whom Wrae allegedly had been sexual as to acts committed with
them, acts which were not charged in the indictment. The court noted that
these other acts were introduced "only to prove [that] Wrae was a sexual
pervert, and to identify him as such.62 These
other acts, the court believed, would confuse the jury and "prejudice
them against the accused."63 This was
"manifestly unjust[.]"64
Two bills introduced into the legislature in 1927, neither of which became
law, would have affected those convicted of sodomy. The first65
would have created a classification of criminals known as "abnormal
offenders" who included those with "abnormal mental or emotional
traits to which their offenses may be primarily or substantially
attributed."66 These offenders would have
to be kept in their own institution.67
The second68 would have extended terms of
imprisonment of any felon who was "abnormal[.]"69
In 1927, the Ohio Attorney General issued an opinion70
that the provisions of the probation law excluding eight specified crimes,
including sodomy, from eligibility for probation were, as the law stated,
absolute.71
In the 1931 case of Shipman v. State,72
an appellate court found "overwhelming" the evidence of the accused’s
guilt.73 The "overwhelming" evidence
of his guilt was that he placed his hand on his head when he was accused in
the police station, asked for water, and began perspiring.74
A bill was introduced into the House of Representatives in 193575
to prohibit disturbing the peace and "good order" by following
any female or other person in an indecent or disorderly manner, or by
lewd or lascivious conduct[.]76
The bill passed the House without amendment but never came out of committee
in the Senate and never was reintroduced.
In 1939, Ohio became one of the first states to enact what became known as
a "psychopathic offender" law.77
These legal nightmares purported to establish a mechanism whereby criminals
considered neither sane nor insane could be subjected to possible
institutionalization and "cure." This twilight of mental functioning
was the so-called "psychopathic" individual who knew right from
wrong, but could not control his or her actions. The Ohio law, known as the
Ascherman Act for its chief sponsor, did not define the term
"psychopathic," but did define "mentally defective" as one
afflicted with a mental disease or disorder, or is in a psychopathic
condition, which renders such prisoner likely to be a habitual criminal[.]78
As originally enacted, the law applied to any person convicted of any
felony except first-degree murder. The convicted felon could be ordered to
undergo a mental examination.79 If the
examination showed the felon to be a psychopath and dangerous to the
community, the Court was empowered to sentence him or her to indefinite
commitment in an institution rather than a definite sentence in the
penitentiary.80 No prisoner was permitted to be
released from the institution, even if considered cured, until the expiration
of the minimum term for which, if he or she had been imprisoned, the prisoner
would be eligible for parole.81 Although the
Ascherman Act was, on its face, neutral as to the type of felony which could
trigger its operation, sexual crimes were what tended to be what prompted the
state to use it. An example of this was the first reported sodomy case after
the law’s passage.
In 1942, in State v. Cumberworth,82
an appellate court upheld a sodomy conviction and sentencing under the
Ascherman Act. Cumberworth had, in his defense, called an unnamed
eminent authority on mental diseases who testified in part that the
defendant was suffering from what the witness called "psychopathic
personality" which is evidenced by abnormal sex practices and other
maladjustments.83
Cumberworth had engaged in apparently consensual fellatio with several
"boys."84 The Court did not discuss
the Ascherman Act in any detail, but rejected Cumberworth’s contention that
he was acting under an "irresistible impulse."85
The last victory in a reported Ohio sodomy case came in 1944 with State
v. Forquer.86 An appellate court
unanimously overturned the conviction of a man for performing cunnilingus on a
girl. Recognizing the language of the sodomy law that labeled a sexual act as
criminal if it was committed "in any opening of the body, except sexual
parts" the Court believed that the law should be
strictly construed according to its clear import and not, because of
the disgusting and infamous nature of the act, as it may be thought it
should be.87
The act of cunnilingus, because it occurred in a sexual part, "was not
within the purport of the statute[.]"88
The onus for further action was thrown to the Ohio legislature, which
nevertheless never acted to make cunnilingus a crime. A review of legislative
journals shows that no bill to extend the sodomy law to include cunnilingus
ever was introduced.
In 1945, in State v. Walhenmaier,89 a
sodomy conviction was sustained largely on the evidence of a doctor’s
examination.90
Also in 1945, the legislature enacted three laws to deal with sex offenses.
First, the sodomy law was amended91 to
establish a minimum of one year in prison.92
The 20-year maximum was not changed.
A second law was the apparent response of the legislature to the Forquer
decision on cunnilingus. The female in that case was a nine-year-old, and the
new statute93 merely prohibited the taking of
"indecent and improper liberties" with a minor.94
There was no attempt to extend the sodomy law to cover cunnilingus with an
adult.
The third and most significant new law was a revised Ascherman Act.95
The law for the first time defined a "psychopathic offender" broadly
as one
who is adjudged to have a psychopathic personality, who exhibits
criminal tendencies and who by reason thereof is a menace to the public.
Psychopathic personality is evidenced by such traits or characteristics
inconsistent with the age of such person as emotional immaturity and
instability, impulsive, irresponsible, reckless and unruly acts,
excessively self-centered attitudes, deficient powers of self-discipline,
lack of normal capacity to learn from experience, marked deficiency of
moral sense or control.96
The new law also limited the number of crimes for which the Ascherman Act
could be invoked to six, one of them sodomy.97
If a person so convicted was found to be a psychopathic offender after
psychiatric or psychological evaluation, the sentence of his or her crime was
suspended and the defendant was to be committed indefinitely to a mental
health institution.98 If the defendant
recovered from the psychopathy, he or she then was to be transferred to a
penal institution or reformatory to begin serving the criminal sentence, with
all time served under the Ascherman Act to count as good behavior time,
allowing the individual to be released before reaching the maximum sentence
possible.99
A clear view of how sodomy laws could operate was a scandal in Lima in
1946. Three men were arrested on sodomy charges for activity with consenting
teenagers. All were labeled as psychopathic and initially sent to Lima State
Hospital for the Criminally Insane. The first defendant arrested could not
find an attorney to take his case, solely because of the nature of his
offense. Before being sentenced, they were required to turn over to the court
lists of Gay men they knew in the Lima area. Police originally inflamed the
city by claiming over "150 men and boys" were involved and a tighter
clamp was placed on news than during the war.100
II. Sterilization
Although Ohio never adopted a sterilization statute, one was advocated as
early as 1894 to include those convicted of sodomy.101
In 1927, a bill102 that came close to
becoming law was one to provide for the sexual sterilization of certain
people, including those "suffering from perversion or marked departures
of normal mentality."103 Anyone already
in prison could be sterilized if
he is a moral or sexual degenerate or pervert [and] convicts sentenced
to the penitentiary for life, who exhibit continued evidence of moral and
sexual depravity.104
Prison officials took on a certain responsibility that they had no legal
authority to do. In 1941, a newspaper reported that, a year earlier, the State
Pardon and Parole Commission adopted a rule requiring prisoners convicted of
sex crimes to be sterilized before winning parole. Six prisoners had been
sterilized in a year-and-a-half. One member of the commission stated that he
never would vote for parole for a sex criminal unless the "man"
first submitted to "an operation." (Apparently women never committed
sex crimes). The procedure was referred to as "castration," took
only seven minutes to perform and, after the surgery, "the patient has no
further interest in sex matters."105 This
article aroused an overnight storm of controversy in Middle America. The
following day, the same newspaper reported that a number of doctors questioned
the procedures adopted by the Pardon and Parole Commission, an ecumenical
sample of clergy unanimously condemned the policy, and the Commission denied
that it ever applied "pressure" to inmates to submit. The article
also noted that the surgery left the prisoner impotent, which, due to the
seven-minute duration of the surgery, presumably was the severing of erectile
muscles in the abdomen, an irreversible procedure which prohibited a man from
obtaining an erection, but which did not remove sexual desire, in effect, a
form of emotional torture.106
Period Summary: Ohio remained a free state for sodomy well into
the Victorian era. When a bill was introduced to criminalize sodomy, it
apparently was created as a blatant political maneuver to embarrass the
Governor. The new law was interpreted the following year to exclude any
sexual activity without a male person involved, but lasted only four years
before being broadened in an effort to include oral sex. During this era,
Ohio pioneered two other laws. One outlawed instruments for
"self-abuse," which would cover "sex toys," even
though sodomy remained legal at the time of its enactment. The second
prohibited probation for anyone convicted of sodomy, guaranteeing up to 20
years in prison for private, consensual acts between adults. The sodomy
law was interpreted to include fellatio, although three decades later
another court ruled that the same law did not include cunnilingus. Ohio
was one of the earlier states to enact a psychopathic offender law and,
although the first such law was vague as to its applicability to sodomy, a
court interpretation held that any act of sodomy could fall under its
scope. Ohio never enacted a sterilization law, although there were
numerous attempts. Undaunted by a lack of legal authority, Ohio prison
officials undertook sterilization of sex criminals before their release
from prison, a policy that lasted until it was publicized and became the
recipient of much public criticism.
The Kinsey Period, 1948-1986
In a 1948 case, State v. Giles,107
an appellate court sustained a sodomy conviction without giving much in the
way of details other than ominously stating that "there was a fight
between defendant and the prosecuting witness."108
A rare instance of the state looking into the possibility of prosecuting
two women for consensual relations was raised in 1949. Two women in the small
town of Dresden had "married," with one dressing like a man. The
ex-husband of one complained to the county sheriff, asking that the
relationship be investigated, but with "few laws to work on concerning
‘friendship’ between two women, the investigation was not carried on very
far."109
A law review article in 1950110 surveyed
the different psychopathic offender law provisions in the country and made
recommendations for changes to that of Ohio. Among the changes suggested were
that the law be expanded to cover sex misdemeanors, that the prison term
following the period of treatment be abolished, and that an unspecified
probationary period be required of all released psychopaths.111
In the case of Stewart v. Alvis,112
from 1950, an appellate court upheld a sodomy conviction after the trial court
rejected the professional opinion of three psychiatrists and decided on its
own that Stewart was a psychopathic offender.113
In 1951, a bill was introduced into the Ohio House of Representatives114
to establish a commission to study and recommend "treatment and
cure" of three classes of offenders: habitual sex criminals, the sexual
deviate, and the sexual psychopath.115 No
definition was created of any of the three. Thus, if this bill had become law,
"sexual deviates" could have been rounded up for treatment and cure,
separate from sexual criminals.
A new law of 1951116 expanded the reach of
the Ascherman Act to include "any misdemeanor involving a sex offense, or
in which abnormal sexual tendencies are displayed[.]"117
The main argument in favor of this law was that "dangerous sex offenders
are sometimes prosecuted on relatively minor charges" and children needed
to be protected from them.118 It is unclear
why such "dangerous" activities were considered only misdemeanors
under the law.
A bill was introduced into the House of Representatives in 1953119
to authorize
facilities and establish a hospital for the detention, custody, care,
special training, and rehabilitation of narcotics addicts, alcoholics, and
sex perverts.120
Nothing in the bill stated that these "perverts" had to be
convicted of any crime in order to be placed in detention for
"care." It did not become law.
Another unsuccessful bill of the session concerned "mentally abnormal
sex deviates."121 A person convicted of
any sexual crime could be considered such a deviate if he or she had
such mental disorder coupled with other criminal propensities to the
commission of sex offenses that, although not committable as mentally ill
or mentally deficient to an extent making him criminally irresponsible for
his acts, he has evidenced a lack of power to control his sexual impulses
and is so affected as to be likely to attack or otherwise inflict physical
and mental injury upon the object of his desires in a degree and manner
constituting him a menace to the health and safety of others.122
The purpose of this bill is unclear. It attempted to create new sections of
law and a new procedure separate from the Ascherman Act, but for similar
purposes, even using similar definitions. This bill never came out of
committee.
In 1954, a Cleveland-area ex-police officer was arrested on sodomy charges
with consenting teenagers and with an adult. The teenagers were not
prosecuted, but the "dozen" of them received a "severe lecture
on the dangers of such associations" from a judge with their parents in
attendance.123
In a 1954 case, State v. Rudy,124 an
appellate court, facing a case in which a man was convicted of violating the
indecent and improper liberties statute of 1945, decided that the law was
"directed at homosexuals who would assault children of either sex."125
This language makes it seem that the court believed that opposite-sex
molestation was committed by a person with a homosexual orientation.
A fascinating case began in 1954 and dragged on for two years. David Trago,
the elected sheriff of a small county in Southern Ohio, as well as a religious
fundamentalist and the father of 13 children, was arrested on a sodomy charge
with a teenage male. The case also involved political intrigue and accusations
of bribery and intimidation of witnesses on both sides of the case. After a
spectacular trial, during which his fundamentalist associates supported him,
he was acquitted. However, several months later he was arrested on a similar
charge and convicted. He then refused to give up his sheriff’s office, but
was forced out and then made an attempt to regain the office in the 1956
election. He won the Democratic primary handily, but lost the general election
57%-43%.126
The constitutionality of the state’s sodomy law was considered in 1955 in
State v. Allen.127 This case must hold
the record for brevity in a case making a constitutional challenge. The entire
opinion consists of exactly 28 words.
It is ordered and adjudged that this appeal as of right be, and the
same hereby is, dismissed for the reason that no debatable constitutional
question is involved.128
Presumably, the constitutionality of sodomy laws was beyond dispute. So
little information appears in the case that the fact that this was a
constitutional challenge had to be mentioned in an editor’s note in the law
reporter.129
In 1957, a bill was introduced into the Ohio House of Representatives to
permit the granting of probation for sodomy. It failed to become law.130
A curious dictum in the 1957 divorce case of Johnston v. Johnston131
made Ohio the first state to exempt, by court decision, married couples from
the operation of sodomy laws. A woman sued her husband for divorce on cruelty
grounds because he wanted both fellatio and cunnilingus to be part of their
sex life. The court denied the divorce, noting that the woman apparently
enjoyed both, but added that as far as
the private moral relationship between husband and wife are concerned
(as to either cunnilingus or fellation [sic],) it is certainly one
that rests entirely in the minds of the two of them.132
A mysterious scandal from the city of Coshocton occurred in 1957. Minimal
newspaper coverage mentioned a "wave of shocking immorality and
perversion" in the city, involving eight men, including two ministers,
and "teenage boys." Records show the disposition of only one of the
eight cases, but the others apparently were sent to a workhouse or state
mental hospital.133
In a 1958 case, State v. Harmon,134
a dissent appeared in an Ohio sodomy case for the first time. An appellate
court divided 2-1 to uphold the conviction of a man for sodomy with several
teenage males even though the Court conceded that each of them
may be characterized as delinquent, and each, according to his
testimony, was a willing accomplice to the crime of sodomy with the
defendant. They each testified to a sordid association with the defendant,
during which, on numerous occasions, and at various places, they
individually submitted to and participated in the offense of fellatio with
the defendant.135
The Court also noted that Ohio case law permitted conviction of a defendant
upon the uncorroborated testimony of an accomplice.136
The Court noted that the testimony "may be said to be
contradictory,"137 and that it was
possible that
the defendant was "framed" by the delinquent youths. It is
difficult to believe that a man with such an excellent social background,
a former soldier who served his country with distinction in World War II,
and the head of a splendid family, would be guilty of the offenses
charged.138
Despite this, the Court of Appeals would not disturb the trial judge’s
verdict.139 In dissent, Judge Stevens believed
that a "vindictive conspiracy" was behind the charges because Harmon
had charged one of the teenagers with burglary of his service station.140
Another very short opinion by the Ohio Supreme Court was given in the 1958
case of In Re Latham.141 Five years
earlier, a national dragnet was established to catch Latham, accused of sodomy
with seven different males, twice each, and each time consensually.142
Latham fought his incarceration under the Ascherman Act, since the trial court
had declared him to be psychotic even though the examining psychiatrists found
that he was not. Other claimed errors included a corrupt prosecutor,
inadequate legal counsel, intimidation and attempted extortion by his counsel,
and a claim that the Ascherman Act was unconstitutional.143
Latham also made an eloquent plea on behalf of same-sex love in his brief to
the Supreme Court, an action which may have caused the Court’s cold
reaction. In an opinion just 23 words long, the Court decided that Latham
could not pursue his claims in a habeas corpus proceeding.144
This was based on an earlier case that barred such suits if the trial court
had jurisdiction to decide the constitutionality of laws. In other words,
since Latham hadn’t raised the issues in his trial, he was doomed to
whatever penalty the state had waiting for him and never could challenge it.
In a third sodomy case from 1958, State v. Carey,145
an appellate court sustained a sodomy conviction of a man for sexual relations
with a teenage male who had acknowledged "homo-sexual activities with men
since he was ten years old."146
In 1959, a bill was passed147 to require
the registration of any person convicted two or more times of certain sex
offenses, including sodomy, with the county sheriff.148
The defendant also was required to report every change of address to the
sheriff.149 Failure to comply with either of
these provisions was a criminal offense.150
The bill was vetoed by Governor Michael DiSalle.
Another, more limited constitutional challenge to the sodomy law was
unsuccessful in the 1959 case of State v. Simmons.151
This case reduced to just 18 words the rejection of a sodomy defendant’s
claim.
The appeal as of right herein is dismissed for the reason that no
debatable constitutional question is involved.152
A law reporter editor’s note was many times the length of the opinion in
explaining the background of this case. Simmons challenged the sodomy law
under the Ohio constitutional provision that required all laws to have only
one subject. The law under which Simmons had been convicted had, like almost
all of Ohio law, been reenacted in a single statute, a comprehensive
recodification of law in 1953.153
Simmons also was unsuccessful in a 1960 case seeking release on habeas
corpus. The Ohio Supreme Court, deciding In Re Simmons,154
unanimously ruled that Simmons could not use the procedure since he had
appealed his conviction on the same ground.
A law review critiqued the Ohio sodomy law in 1959155
and found it lacking. The law made no distinction between consensual and
non-consensual acts, or those with adults or children.156
The tremendous variation in punishments for sodomy among the states was
unknown in any other area of criminal law.157
The review also noted that the "psychopathic offender" law was
similarly deficient in treating dissimilar events alike158
and that it was "an ill-advised experiment" that should be
abandoned.159 A revision of Ohio’s sex laws
was "badly needed,"160 but would not
in fact come for a decade and-a-half.
In a 1960 case, State v. Shively,161
an appellate court upheld a sodomy conviction based on flimsy evidence. The
court believed that
any act of the defendant which, either directly or by reasonable
inference, tends to show a course of lascivious conduct, degeneracy and
sexual perversion is admissible to show such qualities of character and
moral disposition [of the defendant].162
In 1961, the Ohio Supreme Court affirmed.163
Dividing 4-2, the majority opinion is without substance, but the heated
dissent of Justice Thomas Herbert pointed out the flimsiness of the
circumstantial evidence used to send Shively to prison. He could not
recall reviewing a record more replete with prejudicial error in the
admission of incompetent and improper evidence[.]164
Questioning the state’s condemning evidence against Shively, Herbert
asked, since
when is "strange conduct" or "alleged unusual
circumstances" occurring near a defendant’s home evidence as to the
guilt or innocence of such a person when charged with an offense such as
here?165
In reviewing the trial record, Herbert, in fact, could not
find any evidence of acts even related to the charge in the indictment
confronting the defendant.166
An unreported sodomy case from 1960, State v. Smith,167
found the use of a lie detector to be unacceptable168
and quoted from the arresting highway patrolman that, if the lie detector had
shown Smith to be innocent, he still would be prosecuted, only under
the charge of contributing to the delinquency of a minor.169
A new law enacted in 1961170 prohibited the
solicitation of another person, regardless of gender, to engage in "an
unnatural sex act."171 Anyone so
convicted could receive up to six months in jail and/or a $200 fine172
and be subjected to institutionalization under the Ascherman Act.173
Several major constitutional arguments were rejected without analysis by
the Ohio Supreme Court in the 1962 case of Brown v. Maxwell.174
Virgil Brown’s arguments were rejected as follows. 1) He had been arrested
without a warrant, answered by the Court that state law did not require a
warrant175 (making no reference to the U.S.
Constitution); 2) He had not been informed, as required by state law, of the
charges against him at the time of his arrest, answered only that, even if the
state did violate the law in this case, it did not invalidate his conviction.176
The Court also said that "even if an arrest is illegal it does not amount
to a denial of due process and does not, after conviction, furnish grounds for
a release by habeas corpus;"177 3) He had
been in jail on another charge when the indictment accused him of engaging in
sodomy. The Court replied that this was irrelevant.178
In conclusion, the Court unanimously decided that Brown
has shown no lack of jurisdiction in the trial court nor any
deprivation of his constitutional rights.179
A bill introduced into the Ohio House of Representatives in 1963180
would have made examination under the Ascherman Act compulsory for all
misdemeanors "involving a sex offense, or in which abnormal sexual
tendencies are displayed."181
The sex offender registration proposal vetoed by Governor DiSalle in 1959
was revived under new Governor Rhodes in 1963.182
The law was identical to that of the vetoed provision, except that it
prohibited the records gathered under it from being open to the public.183
Three reported sodomy cases (in fact, the last reported cases in Ohio),
followed an incredibly virulent anti-Gay witch hunt in Mansfield in the summer
of 1962 that involved hidden cameras in a public restroom.184
Some 65 men had been filmed in living color engaging in sexual acts in the
restroom, but only 38 ever were identified and arrested. Of these, very few
challenged the right of the state to prosecute them.
In 1964, the first of the cases, State v. Thomas,185
was decided by the Ohio Supreme Court. Otho Thomas had been put under the pall
of the Ascherman Act upon his arrest and he attempted to block the procedure.
The Court unanimously found that initial commitment under Ascherman for
observation before sentencing was a "procedural" matter and could
not be appealed.186
Another 1964 Mansfield case was State v. Chamberlain.187
The Supreme Court denied the right of James Chamberlain to withdraw his guilty
plea pending initial observation under the Ascherman Act. The Court again
found that this was not a final appealable order, and he would have to be
examined psychiatrically before he could attempt to withdraw his guilty plea.188
The Court gave no hint of the appalling police intimidation that Chamberlain
endured upon his arrest.189 Fighting
to the end, Chamberlain appealed to the U.S. Supreme Court, which refused to
hear his case.190
The final reported Mansfield case, and the last reported sodomy case in Ohio,
was decided in federal court in 1965. In Poore v. Ohio,191
U.S. District Court Judge James Connell rejected Ralph Poore’s attempt to
invoke a federal law192 that permitted removal
of certain criminal prosecutions into federal court if a prosecution under state
law appeared to be discriminatory. Connell noted that the purpose of the federal
law was to prevent "invidious discrimination" that deprived a
defendant of equal rights.193 The equal rights
claim was rejected by the Court because it did not involve race.194
On the motion for stay of orders pending appeal, Connell rejected Poore’s
claims that the search and seizure of the restroom by use of the hidden camera
was illegal because the acts took place in view of anyone who would enter the
restroom.195
A medical journal article from 1964 revealed that Gay men at the Lima State
Hospital for the Criminally Insane were given doses of an extremely dangerous
antidepressant drug, tranylcypromine, that has a number of potentially fatal
side effects. The medication was combined with "educational therapy or
group therapy." One-third of the number were considered "good
remission cases" and were recommended for release.196
The law prohibiting solicitation for an "unnatural sex act" ended
up in court. In the case of State v. Sharpe,197
in 1965, an appellate court unanimously found the term "unnatural sex
act" to be unconstitutionally vague and overbroad. The Court noted that the
sociological and biological range of sex acts is almost infinite, going
from so-called Freudian impulses, alleged by some to exist in all human
behavior, to the viewpoint that all sex acts which do not lead to the
production of offspring are unnatural.198
The Court also noted that it was probable that sodomy was the only act the
law was attempting to cover,199 but said that
persons still were liable to arrest
without having any positive guide whereby the solicitor or solicited may
know whether the act proposed is unnatural. Even the policeman does not have
a sufficient standard to determine whether what he may have seen or heard
requires an arrest.200
The Court nevertheless issued a harsh condemnation of the Gay defendant’s
broader claim that,
because of his peculiar tendencies and appetites, [he] must be judged
subjectively, since this behavior is possibly natural to him, is, of course,
nonsense. The very purpose of law is to establish a standard of conduct
conducive to the needs and welfare of the community. To set this standard by
what is natural to the community’s pariahs is to say that the abnormal
should be the standard, and the normal and natural might become the peculiar
to some few persons.201
Several months later, another similar conviction was reversed on the Sharpe
precedent.202
This "defect" was cured by a new law203
that reworded the "unnatural sex act" provision to be "act of sex
perversion."204 The purpose of the new law
obviously was to outlaw only one type of solicitation: that for sodomy.
Two unsuccessful attempts at legislation in 1965 were to expand the Ascherman
Act to include municipal sex offenses ordinances205
and one to permit probation for those convicted of sodomy.206
Another law journal attack on the sodomy law was published in 1966.207
Similar condemnations of the sodomy law were made in this article as had been
made in the 1959 article,208 but, in the seven
years since the first, no change had been made in the law.
In an unreported decision from 1969, State v. Evans,209
an appellate court again upheld the right of the state to prosecute sodomy
defendants solely on the uncorroborated testimony of an accomplice.210
The case involved a sexually active and very willing 14-year-old male who
testified that he had participated in like sex acts on a number of other
occasions with this appellant as well as with others.211
He was
far from being a naive and sheltered youth. There is evidence which would
tend to show that his past experiences had provided him well with the
knowledge of what constituted the act in question.212
An unreported case from 1971, State v. Kleinline,213
first raised an explicit privacy claim. Ralph Kleinline was arrested in a
restroom in a building on the Ohio State University campus after a police
officer looked through a clear spot in a frosted window and noticed Kleinline
and another man engaging in consensual sodomy in a public area of the restroom.
No other persons were inside the restroom at the time of the sexual act.214
Rejecting the privacy argument, the Court noted that, had the act taken place
inside a home, the state never would have known that it occurred and no
prosecution would have been initiated.215 The
statute was "narrowly and exactly defined."216
The privacy rights acknowledged by the U.S. Supreme Court and those claimed by
Kleinline were "in no sense comparable[.]"217
As late as 1971, claims were made that many sex criminals were sent to the
Lima State Hospital for the Criminally Insane illegally, kept their well beyond
the time they should have, and frequently abused.218
In 1972, Ohio enacted a comprehensive criminal code revision219
that repealed the sodomy and solicitation laws.220
The sex offender registration law was not repealed, and a new solicitation law
was enacted221 that said no
person shall solicit a person of the same sex for sexual activity with
the offender, when the offender knows such solicitation is offensive to the
other person, or is reckless in that regard.222
The penalty was set at up to six months in prison and/or a fine of $1,000.223
As written, the law required two factors to be present for a crime to have been
committed. The solicitor and solicited had to be of the same sex and the
solicited party had to be offended. A solicitation of a person of the same sex
who was not offended or a solicitation of a person of the opposite sex, no
matter how offended, were not crimes. This statute created three obvious
problems. 1) It was discriminatory; 2) It was a violation of free speech in that
the activity solicited was legal; 3) It created an impossible burden on the
solicitor to know before the fact who would and who would not be offended
by a sexual solicitation. The logic provided by the state in passing this law
was that
the solicitation in itself can be highly repugnant to the person
solicited, and there is a risk that it may provoke a violent response.224
In a 1977 case, State v. DeFelice,225
the solicitation conviction under this law was overturned because the undercover
officer who was solicited had made such friendly conversation that DeFelice was
considered justified in thinking that the officer actually was consenting to
sex.226
An act of judicial legislation lowered the age of consent in Ohio. In 1978,
in State v. Maxson,227 the Ohio Supreme
Court voted 6-1 to interpret the state’s age of consent law as lower than what
the legislature intended. Although 16 was what was intended, the 1972 criminal
code used the phrase "not over fifteen" and the Court found that this
meant that even one day past the age of fifteen was "over fifteen"
and, therefore, no longer jail bait.228
In 1979, the Ohio Supreme Court, deciding State v. Phipps,229
upheld the constitutionality of the solicitation law. In a 6-1 decision, the
Court found that the law was not void for vagueness, but nevertheless
"authoritatively construed" it to be applicable only to "fighting
words." The case involved Kenneth Phipps who told an undercover police
officer who was standing on a sidewalk
Hop in, let’s go have sex. You look paranoid, come on in, I want to
suck your dick.230
Justice Ralph Locher, in a decision worthy of censure, noted that the word
"knows," as in acting knowingly, was "precisely defined" in
a stated section of the Ohio Revised Code.231
Locher overlooked the fact that the definition he found clearly applied only to
eight stated chapters of the Revised Code, all dealing with commercial
transactions. It had no applicability to criminal law.232
Locher believed that words such as "offensive" and
"reckless," while not defined under state law, nevertheless were
"commonly understood by men of common intelligence."233
Addressing the "offensiveness" issue of a same-sex solicitation,
Locher stated that those
who would have this court believe that the average citizen would not find
homosexual solicitations of the nature proscribed in R.C. 2907.07(B) to be
injuriously offensive are guilty of murky thinking. The type of expression
proscribed in the statute may have been acceptable in a more barbarous age
when human dignity had not reached the level expected by citizens in our
modern society.234
Thus, the more "modern" a society grew, the less tolerant it
became. Nevertheless, Locher wrote that the law "sweeps too broadly"
and had to be "narrowly construed" to proscribe only "fighting
words."235 The lone dissenter was Justice
A. William Sweeney, who felt that the law was an unconstitutional infringement
of free speech. He believed that the majority opinion "exceeds the limits
of rational statutory interpretation."236
In a 1983 case, State v. Howard,237 a
trial court dismissed the solicitation charge against a defendant who had
responded to a blatant sexual suggestion by an undercover police officer. Since
Howard had not made the original suggestion for sex, he could not be held to
have solicited.238
The 1983 case of State v. Goldsmith239
concerned solicitation and exposure in an aromatic patch of honeysuckle.
An undercover police officer had been sent to a rest area to "investigate
complaints of homosexual activity" and arrested two men, one of whom
exposed himself, and the other of whom did not.240
The Court of Appeals determined that, since the honeysuckle was some six feet
high and people within it could not be seen by anyone outside the patch, a
conviction for public indecency therein could not stand.241
Period Summary: Ohio expanded the reach of its psychopathic
offender law, both through statutory change and court interpretation. Court
challenges to sodomy convictions were universally unsuccessful, including
one of the nation’s first constitutional challenges to a sodomy law.
Despite the conservatism of the courts, a law review article from 1959
attacked the sodomy law’s existence and the legislature enacted a criminal
code revision in 1972 that made Ohio the seventh state to decriminalize
consensual sodomy and the first to have gender-neutral sexual assault laws.
A discriminatory solicitation law remained and the Ohio Supreme Court
continued the state’s history of a conservative judiciary when it upheld
the law against a constitutional attack in 1979, although it did limit its
scope to "fighting words." Since that time, appellate courts have
limited the law further so that now it can be considered a law covering only
threatening solicitation.
The Post-Hardwick Period, 1986-Present
In 1987, an appellate court, in the case of State v. Johnson,242
upheld a public indecency conviction of two men for engaging in consensual
fellatio in a toilet stall that was closed, but not locked. In a roadside rest,
a highway patrolman, John Lumpcik, entered the facility and opened the closed,
unlocked door to discover the defendants in the act.243
Although Lumpcik’s action was "offensive," the Court did not feel
that
society is prepared to recognize as reasonable an expectation of privacy
of people engaging in sexual acts in a public outhouse with no lock on the
door.244
In 1990, in Bamon Corporation v. City of Dayton et al.,245
federal judge Walter Rice upheld a Dayton ordinance requiring the removal of
doors from viewing booths in adult bookstores. One of the justifications for the
ordinance, Rice said, was that
semen had been found on the walls of viewing booths in adult businesses
in Columbus[.] [Emphasis added].246
As a result of sexual activities in booths in a city 70 miles away, Dayton
felt it had to enact an ordinance to prevent such activity within its borders as
well. In addition, one investigator personally investigated the Dayton booths
(after the testimony about conditions in Columbus) and found semen marks
"everywhere" in the booths. A representative of the American Family
Association also spoke in favor of the ordinance’s adoption by saying that
"in his opinion" conditions in Dayton were no different from in
Columbus.247 All of this evidence was presented
to the city commission, but the evidence on conditions in Columbus was
"particularly" relevant to conditions in Dayton.248
On appeal,249 the Sixth Circuit affirmed Rice.
The Ohio legislature, after a dozen years, got around to overturning the Maxson
decision on the age of consent with a new law of 1990.250
The age was raised to 16.251
In 1990, charges of "disorderly conduct" against two men for
holding hands inside a parked car in notoriously homophobic Cincinnati were
dismissed by a trial court judge. The arresting police officer, Marty Polk,
claimed that he would have been equally offended by a man and woman holding
hands. Judge Joseph Luebbers agreed that the charge was too vague to be
sustained.252
In 1991, in State v. Perrin,253 the
state’s importuning law, as it deals with "offensive" solicitation,
effectively was gutted. Judge Mark Painter of the Hamilton County Municipal
Court discharged the defendant who had solicited an undercover police officer.
Painter hinted that the law was unconstitutional on equal protection grounds,
but decided that he need not reach that conclusion because Perrin’s
solicitation did not reach the "fighting words" level required by Phipps.254
Thus, even if an undercover officer is deeply offended by the solicitation, an
arrest can not be had without a threat of breach of the peace.
A trial court decided State v. Laney255
in 1991. Laney had been arrested in a restroom and charged both with importuning
and public indecency. He had engaged himself in a conversation with an
undercover police officer. The officer led Laney on, making him believe that he
was interested in sex with him. As a result, Judge Dennis Helmick, trying the
case without a jury, relied on DeFelice in finding Laney not guilty of
the importuning charge. However, since Laney also had exposed himself in front
of the officer, that charge led to a conviction.256
Also in 1991, the public indecency conviction of a Gay man was upheld in Miller
v. Barberton Municipal Court.257 Duane
Miller was with friends at a fenced private club, although neighbors could see
into a portion of the pool area. Miller briefly had exited a hot tub to get a
towel. He had been spotted by two female neighbors during this "five or ten
feet" walk and this was the basis of his conviction. Just why the neighbors
were staring into the pool area was not explained. The Sixth Circuit Court of
Appeals, voting 2-1, found that Miller’s conduct was "reckless" as
required by state law, even though he rightfully would assume that the fencing
blocked the view from the houses.258 The dissent
by Judge Nathaniel Jones stated that he did not believe Miller acted recklessly,259
and pointed out that the owner had assured patrons of their privacy behind the
fence.260 Miller and his friends had been
"watched with binoculars by police and neighbors from [neighbor] Maxine
Clapper’s breakfast nook" and justifiably reacted with outrage that their
privacy had been invaded by voyeuristic neighbors.261
A conviction for importuning was upheld in 1992 in State v. Presley.262
A man pulled his car into the driveway of a house where a 17-year-old male was
cutting the grass. He "pulled up his shirt, rubbed his stomach" and
asked the young man "if he wished to engage in a specific sexual act."
By a 2-1 vote, the Court of Appeals decided that this was at the level of
"fighting words" required by the Phipps decision. In dissent,
Judge Richard Koehler twice referred to the young man as a "victim"
with the quotation marks supplied by him, showing that he did not believe
anything approaching a law violation occurred. He said that the young man
"reacted as an ordinary person, rejection the proposal and told appellant
to ‘get out of here’."263
In 1995, in State v. Gilroy, another constitutional challenge to the
importuning law failed. Gilroy had picked up a 13-year-old male and asked him if
he wanted sex and touched his thigh.264
In 1995, Ohio enacted a new criminal penalties law265
that changed the sentence for violation of the sex offender registration law.
The penalty was lowered from a fourth to a fifth-degree misdemeanor, making the
sentence of 6-12 months and/or $2,500, rather than a 1½-5 year sentence.
In 2002, showing what a difference a couple of decades can make, the Ohio
Supreme Court did an about-face on the offensive solicitation law. Deciding State
v. Thompson,266 a unanimous Court (with no
remaining justices from the 1979 Phipps court) found the law
unconstitutional on the ground of equal protection of law. Writing for the
Court, Justice Deborah Cook found that the law affected a fundamental right, the
right to free speech, and therefore had to be analyzed under strict scrutiny. So
analyzing the law, Cook found that a decision of the U.S. Supreme Court since
the time of the Phipps case267 guided it
today. The Court found the statute to be content-based in the limitations on
sexual solicitations proscribed.
This decision also effectively erased the provision of the sex offender
registration law requiring registration by people convicted two or more times
under the offensive solicitation law268 as well
as a law269 requiring criminal background checks
on prospective employees for child care or senior care positions. Virtually all
sexual crimes were included, including the "offensive solicitation"
law that prohibits "offensive," but otherwise consensual sexual
solicitation between persons of the same sex.
Period Summary: The courts continued with generally conservative
interpretations of sexual freedom, requiring, for example, restroom stalls
to be locked as well as closed in order to create a private place and
upholding a spurious public indecency conviction. However, the offensive
solicitation law had been subject to contradictory court decisions over a
quarter century, until the Ohio Supreme Court finally struck the law down in
2002.
Footnotes
1 Theodore C. Pease, ed., The Laws of
the Northwest Territory 1788-1800, (Springfield IL:Trustees of the
Illinois State Historical Library, 1925), page 253, enacted July 14,
1795.
2 Elliot Gilkey, The Ohio Hundred
Year Book, (Columbus:Heer, 1901), page 127.
3 3 Laws of Ohio, page 149,
enacted Dec. 29, 1804.
4 3 Laws of Ohio, page 348,
enacted Feb. 14, 1805.
5 3 Laws of Ohio, page 1, enacted
Jan. 15, 1805.
6 4 Laws of Ohio, page 38,
enacted Jan. 2, 1806.
7 1 Ohio 132, decided during December
1823 term.
8 Id. at 133.
9 13 Laws of Ohio, page 239,
enacted Feb. 11, 1815.
10 Id. at 246, §22.
11 22 Laws of Ohio, page 181,
enacted Feb. 10, 1824.
12 Id. at 185, §22.
13 Treatise on the Criminal Law,
(Toledo:Commercial Book and Job Stream Printing House, 1857).
14 71 Laws of Ohio, page 14,
enacted Feb. 26, 1874.
15 74 Laws of Ohio, page 240, at
245, enacted May 5, 1877.
16 Cleveland Leader, Aug. 9,
1855, 3:2.
17 Cleveland Leader, Oct. 28,
1867, 4:2.
18 Cleveland Leader, Oct. 18,
1870, 4:5.
19 73 Laws of Ohio, page 158,
enacted Apr. 8, 1876.
20 Id. at 159, §3.
21 82 Laws of Ohio, page 241,
enacted May 4, 1885.
22 Id.
23 See the Ohio State Journal,
Sep. 3, 1885, 4:3. This was a Republican newspaper and the sodomy law
was sponsored by a Republican. Governor Hoadly was a Democrat and was up
for reelection that year. The newspaper article hinted that Hoadly had
an erotic attraction to a male staffer.
24 Ohio Penitentiary Register of
Prisoners. There also were 49 men sent to the State Reformatory in
Mansfield in the years 1896-1920, and 55 boys sent to the Boys’ Reform
Farm in Lancaster in the years 1885-1939. The first woman to enter a
penal institution for sodomy was not until 1943, and that for
heterosexual activity.
25 1 Ohio C.C. 467, decided May 4,
1886. The published case unfortunately does not include the fascinating
social background of the victim and defendants. They apparently were
involved in a four-way sexual relationship and the victim filed charges
for some unstated reason. Two of the three defendants had interesting
tattoos on their arms, including clasped hands and heart, a Goddess of
Liberty, and a Greek slave. Ohio Penitentiary Register of Prisoners
1883-1886, Part 2, page 331.
26 Foster, at 475.
27 Id. at 471-472.
28 For 1899, 1905, 1912, and 1913
actions, see the Ohio Senate Journal. The 1887, 1907, and 1908
actions are in the Ohio Penitentiary Register of Prisoners.
29 86 Laws of Ohio, page 251,
enacted Apr. 12, 1889.
30 Id. §1.
31 Representative Leroy Holcomb
(R-Pennsville), a physician, attempted both in the House and the Senate
to kill the bill. In the House he proposed an amendment to delete the
words "except sexual parts" so that all sexual
relations would become criminal. That lost on a voice vote, but he
worked in the Senate to ensure that a quorum would not be present to
vote on the bill. He initially was successful in persuading two-thirds
of the Senators to remain silent on the roll call, thus defeating the
bill due to lack of a quorum. In a procedure that would not be allowed
today, a reconsideration vote moved by one of the losers in the first
roll call passed the bill on the last day of the year’s legislative
session.
32 Columbus Press-Post, Apr. 21,
1891, 8:2.
33 Akron Beacon and Republican,
June 13, 1893, 1:3; June 14, 1893, 1:8.
34 Columbus Press-Post, Sep. 11,
1898, 9:2; Sep. 13, 1898, 4:6.
35 Columbus Press-Post, Jan. 19,
1900, 9:2.
36 91 Laws of Ohio, page 330,
enacted May 19, 1894.
37 Id. §1.
38 Senate Bill 159, 73rd General
Assembly, introduced Feb. 3, 1898. The legislative history is found in 93
Ohio Senate Journal, pages 106, 117, 344, 497, and 506, and 93
Ohio House of Representatives Journal, pages 564, 635, and 839.
39 Senate Bill 159, §1.
40 Ohio Criminal Law and Practice,
(Norwalk OH:The Laning Co., 1906), page 532.
41 Id. at 533, §2.
42 Id.
43 Id. §3.
44 Id. at 534, §4.
45 99 Laws of Ohio, page 339,
enacted May 9, 1908.
46 Id. at 340, §2.
47 House Bill 201, 78th General
Assembly, introduced Jan. 31, 1910. 101 Ohio House of Representatives
Journal, pages 75, 87, 438, 624-625, and 101 Ohio Senate Journal,
pages 362, 365, and 444.
48 House Bill 201, §1.
49 101 Laws of Ohio, page 437,
enacted Feb. 14, 1910, effective Jan. 1, 1911.
50 33 Ohio C.C. 21, decided Sep. 9,
1910.
51 Id. at 23.
52 22 Dec. N.P. (n.s.) 435, decided
Mar. 22, 1911. A footnote states that Price filed a petition for review
by the Ohio Supreme Court that the Court denied, thus apparently making
this the first sodomy case to reach the Ohio Supreme Court. No reference
to the Court’s action can be found in the Ohio State Reports.
53 22 Dec. N.P. (n.s.), at 437.
54 Id. at 438.
55 Ohio State Reformatory Historical
and Conduct Records, #7,528.
56 104 Ohio St. 298, decided Mar. 7,
1922.
57 In 1896 as a prosecutor, Wanamaker
intentionally suppressed evidence of another man’s guilt of a murder
in order to railroad a Gay man to the electric chair. Fortunately, the
man avoided electrocution, but spent 18 years in prison before Wanamaker’s
treachery was discovered. Despite the finding of the man’s innocence,
Wanamaker steadfastly opposed his release from prison.
58 104 Ohio St., at 305.
59 Id.
60 Id.
61 4 Ohio Law Abs. 499, decided Jan.
16, 1926.
62 Id.
63 Id.
64 Id. at 500.
65 Senate Bill 58, 87th General
Assembly, introduced Jan. 26, 1927. The bill passed the Senate, but
never was considered by the House. See 112 Ohio Senate Journal,
pages 74, 223, and 262.
66 Senate Bill 58, at 2, §1(d).
67 Id. §2.
68 Senate Bill 103, 87th General
Assembly, introduced Feb. 8, 1927. This bill passed the Senate, but
never came out of committee in the House. See 112 Ohio Senate
Journal, pages 115, 125, 224, 245, and 262, and 112 Ohio House of
Representatives Journal, pages 343 and 359.
69 Senate Bill 103, §1.
70 Opinions of the Attorney General
1927, Vol. 2, page 1121, opinion #662, issued June 24, 1927.
71 Id. at 1123.
72 9 Ohio Law Abs. 652, decided Mar. 2,
1931.
73 Id. at 653.
74 Id.
75 House Bill 457, 91st General
Assembly, introduced Feb. 20, 1935. The legislative history is found in 116
Ohio House of Representatives Journal, pages 248, 490, 607, and 727
and 116 Ohio Senate Journal, pages 520 and 524.
76 House Bill 457.
77 118 Laws of Ohio, page 686,
enacted June 6, 1939.
78 Id. at 686, §13451-19 (3).
79 Id. at 687-688, §13451-20.
80 Id.
81 Id. at 690, §13451-22.
82 43 N.E.2d 510, decided Apr. 6, 1942.
83 Id.
84 Id. at 511.
85 Id.
86 58 N.E.2d 696, decided Mar. 13,
1944.
87 Forquer, at 696.
88 Id. at 696-697.
89 64 N.E.2d 148, decided June 21,
1945.
90 Id. at 149.
91 121 Laws of Ohio, page 417,
enacted July 10, 1945.
92 Id. §1.
93 121 Laws of Ohio, page 557,
enacted July 10, 1945, effective Jan. 1, 1946.
94 Id. at 572, §12423-1.
95 121 Laws of Ohio, page 443,
enacted July 10, 1945.
96 Id. at 444, (2).
97 Id. §13451-20.
98 Id. at 445.
99 Id. at 446, §13451-22.
100 Lima News, Apr. 28,
1946, 1:1; Apr. 29, 1946, 1:4; Apr. 30, 1946, 1:1; May 4,
1946, 1:1; May 7, 1946, 1:8; May 8, 1946, 1:5; May 22,
1946, 1:2; June 2, 1946, 1:2; June 7, 1946, 6:1; June 10,
1946, 1:7; June 21, 1946, 1:2; July 14, 1946, 1:3;
July 17, 1946, 1:5.
101 Mark Millikin, "Proposed
Castration of Criminals and Sexual Perverts," Cincinnati
Lancet-Clinic, Aug. 25, 1894, pages 185-190.
102 Senate Bill 201, 87th General
Assembly, introduced Feb. 21, 1927. This bill passed the Senate and came
out of committee in the House. It was not scheduled for a floor vote
before the legislature adjourned for the year, but the chief House
backer attempted to force a floor vote. His motion was rejected by an
unrecorded vote. See 112 Ohio Senate Journal, pages 191, 202,
320-321, and 366, and 112 Ohio House of Representatives Journal,
pages 472, 522, and 627.
103 Senate Bill 201, §1.
104 Id. §2.
105 Columbus Citizen, Oct. 14,
1941, 1:3.
106 Columbus Citizen, Oct. 15,
1941, 1:1. Apparently no records of this episode exist within the Ohio
Department of Rehabilitation and Correction. (Correspondence from
Margarette T. Ghee, Chair, Ohio Parole Board, Jan. 2, 1997).
107 82 Ohio App. 39, decided July 9,
1948.
108 Id.
109 Coshocton Tribune, Nov. 16,
1949, 1:1. The only newspaper reports of female-female sexual activity
that I have located are in the Columbus Press-Post, Dec. 15,
1891, 6:2; and the Columbus Star, Apr. 25, 1953, 3:3.
110 R. William Rosenfeld,
"Commitment of Sexual Psychopaths in Ohio," 2 Western Reserve
L.Rev. 69-82.
111 Id. at 82.
112 104 N.E.2d 596, decided Dec. 19,
1950.
113 Id.
114 House Bill 190, 99th General
Assembly, introduced Jan. 24, 1951. Its legislative history can be
followed in 124 Ohio House of Representatives Journal, pages 147,
516, and 1008-1009.
115 House Bill 190, §3.
116 124 Laws of Ohio, page 382,
enacted June 8, 1951.
117 Id. at 383.
118 Columbus Citizen, June 8,
1951, 23:1.
119 House Bill 510, 100th General
Assembly, introduced Mar. 19, 1953. The legislative history is found in 125
Ohio House of Representatives Journal, pages 439, 621, and 1387.
120 House Bill 510, at 2, §5125.41.
121 Senate Bill 294, 100th General
Assembly, introduced May 19, 1953. The legislative history is in 125
Ohio Senate Journal, pages 504 and 516.
122 Senate Bill 294, §2947.30 (A).
123 Cleveland Plain Dealer,
Feb. 9, 1954, 14:1. Also see the Cleveland Press, Feb. 9, 1954,
9:5; and the Plain Dealer, Feb. 11, 1954, 16:1. One paper noted
the arrestee’s apartment with potted palms and a lovebird. See the Columbus
Star, Feb. 13, 1954, 3:1.
124 139 N.E.2d 81, decided Feb. 24,
1954.
125 Id. at 86.
126 The Jackson Herald (a
biweekly) carried stories most issues between Oct. 19, 1954 and
Jan. 25, 1955, usually on the front page. For the second accusation
and trial and the controversies afterward see generally the issues from
July 8, 1955 to Mar. 6, 1956, also usually the front page.
Also see the issues of Apr. 24, 1956, 6:3; May 6, 1956, 1:6;
May 9, 1956, 1:5; Nov. 6, 1956, 1:3; Nov. 9, 1956, 2:1.
127 163 Ohio St. 531, decided June 8,
1955. Cert. denied, 350 U.S. 897, decided Nov. 14, 1955.
128 163 Ohio St., at 531.
129 Id. at 531-532.
130 House Bill 217, 102nd General
Assembly, introduced Feb. 6, 1957. The bill was reported unanimously by
the House committee considering it, but it never was called up for a
floor vote. The legislative history is found in 127 Ohio House of
Representatives Journal, pages 122, 556, and 977.
131 143 N.E.2d 498, decided May 27,
1957.
132 Id. at 500.
133 Columbus Star, Nov. 2,
1957, 3:1; Dec. 14, 1957, 3:4. The records for the one defendant
documented as having been prosecuted are available in the Clerk’s
Office, Coshocton County Court of Common Pleas, Coshocton. The docket
number is #5146.
134 158 N.E.2d 406, decided Jan. 15,
1958.
135 Id. at 410.
136 Id.
137 Id. at 413.
138 Id. at 414.
139 Id.
140 Id. at 415.
141 168 Ohio St. 14, decided May 21,
1958. Cert. denied, 358 U.S. 67, decided Nov. 10, 1958.
142 Columbus Citizen, Aug. 11,
1953, 1:3; Columbus Star, Sep. 19, 1953, 3:1.
143 The trial court’s decision is
found in the microfilm record of Latham’s case in the Franklin County
Court of Common Pleas, docket #33909. 726 Ohio Supreme Court Briefs and
Records 2d 35566.
144 Latham, at 15.
145 157 N.E.2d 381, decided June 19,
1958.
146 Id. at 386.
147 Senate Bill 339, 103rd General
Assembly, introduced Mar. 4, 1959. For the legislative history see 128
Ohio Senate Journal, pages 243, 274, 509, 576-577, 1239, and 1398,
and 128 Ohio House of Representatives Journal, pages 854, 891,
1505, and 1889-1891.
148 Senate Bill 339, at 2-3,
§2950.04.
149 Id. at 3, §2950.05.
150 Id. at 4, §2950.99.
151 169 Ohio St. 304, decided May 13,
1959.
152 Id.
153 Id.
154 164 N.E.2d 420, decided
Feb. 3, 1960. Cert. denied, 364 U.S. 842, decided Oct. 10,
1960.
155 Phillip E. Stebbins, "Sexual
Deviation and the Laws of Ohio," 20 Ohio St.L.Rev. 346 (Spring
1959).
156 Id. at 353.
157 Id. at 355.
158 Id. at 356.
159 Id. at 359.
160 Id. at 360.
161 86 Ohio Law Abs. 71, decided May
24, 1960.
162 Id. at 76.
163 174 N.E.2d 104, decided Apr. 5,
1961.
164 Id. at 109.
165 Id.
166 Id. at 110.
167 64 Ohio Court of Appeals, 6th
District, Opinions 1, decided Dec. 27, 1960.
168 Id. at 2-3.
169 Id. at 2.
170 129 Laws of Ohio, page
1670, enacted July 25, 1961, effective Oct. 24, 1961.
171 Id. §1.
172 Id.
173 Id.
174 174 Ohio St. 29, decided Dec. 5,
1962.
175 Id. at 29-30.
176 Id. at 30.
177 Id.
178 Id. at 30-31.
179 Id. at 31.
180 House Bill 235, 105th General
Assembly, introduced Feb. 5, 1963. For the legislative history, see 130
Ohio House of Representatives Journal, pages 132, 434, 991, and
1399-1400.
181 House Bill 235, at 1-2, §2947.25.
182 130 Laws of Ohio, page 658,
enacted July 5, 1963, effective Oct. 4, 1963.
183 Id. §2950.08.
184 Mansfield News-Journal,
Aug. 22, 1962, 1:7. Much gloating over the success of the operation is
found in Law and Order, Nov. 1963, pages 16-20 and Aug. 1964,
pages 72-74. The Mansfield Police Department also put out a brochure
called "Camera Surveillance," detailing how it went about
setting the trap, thus encouraging other police forces to do so as well.
185 175 Ohio St. 563, decided Mar. 11,
1964.
186 Id. at 565.
187 177 Ohio St. 104, decided Dec. 9,
1964.
188 Id. at 105-106.
189 Chamberlain, who was married and
the father of three children, was arrested at work and his employer was
brought along to witness the interrogation, during which Chamberlain was
outed to him. He was asked if he and his wife engaged in sodomy, was
told that it was just as much a crime as with another man (thereby
hinting that she might be arrested unless he talked), was threatened
with public exposure (he wasn’t out to his wife or his parents,
either), and falsely was told that the state would go easier on him if
he cooperated with the police. He was promised probation by the
investigator, even though state law forbade probation for sodomy.
Chamberlain’s employer, witnessing the entire interrogation, though
surprised to learn that Chamberlain was Gay, nevertheless did not
abandon him, and verified Chamberlain’s claims of intimidation at the
hands of police. 1226 Ohio Supreme Court Briefs and Records 2d 38621.
190 385 U.S. 844, decided Oct.
10, 1966.
191 243 F.Supp. 777, decided
Apr. 9, 1965. Motion for stay of orders pending appeal, June 10, 1965. The case
of Townsend v. Ohio was consolidated with this case. Townsend was another
Mansfield arrestee.
192 28 U.S.C. §1443.
193 Poore, at 779.
194 Id. at 780.
195 Id. at 782-785.
196 Rudolph Buki, "A
Treatment Program for Homosexuals," Diseases of the Nervous System,
25:304-307 (May 1964). According to the Physicians’ Desk Reference,
tranylcypromine should be given only as a last resort and can cause severe
convulsions, shock or coma, hypertensive crises, peripheral vascular collapse,
and intracranial bleeding.
197 205 N.E.2d 113, decided
Jan. 18, 1965.
198 Id. at 115.
199 Id.
200 Id.
201 Id. at 116.
202 Columbus
Citizen-Journal, July 14, 1965, 8:3.
203 131 Laws of Ohio,
page 1548, enacted July 30, 1965, effective Oct. 30, 1965.
204 Id.
205 House Bill 278, 106th
General Assembly, introduced Feb. 22, 1965. For its legislative history, see 131
Ohio House of Representatives Journal, pages 149, 185, 286, 980, and 1888.
206 House Bill 311, 106th
General Assembly, introduced Feb. 24, 1965. For the legislative history, see 131
Ohio House of Representatives Journal, pages 165, 219, and 297.
207 Douglass L. Custis,
"Sex Laws in Ohio: A Need for Revision," 35 U.Cinn.L.Rev. 211, (Spring
1966).
208 Id. at 226-228.
209 Franklin County, Ohio,
Court of Appeals, Jan.-Mar. 1969, page 197, No. 9225, decided Mar. 4, 1969.
210 Id. at 200.
211 Id. at 199.
212 Id. at 200.
213 Ohio 10th District 1971,
Pages 1313-2023, page 1323, No. 71-30, decided July 20, 1971. Ralph Kleinline is
a distant relative of the author.
214 Id. at 1324-1325.
215 Id. at 1332-1333.
216 Id. at 1333.
217 Id. The Ohio
Supreme Court refused to hear the appeal and an appeal to the U.S. Supreme Court
was contemplated, but abandoned. Docket #46,487, Franklin County Court of Common
Pleas. Kleinline lost his teaching job as a result of his arrest, and later
supported himself as a waiter and tutor, but was unemployed at the time of his
appeal. See the Columbus Citizen-Journal, July 21, 1971, 11:1.
218 Columbus
Citizen-Journal, Apr. 24, 1971, 1:1; Apr. 27, 1971, 1:2;
June 28, 1973, 21:4; June 30, 1973, 3:3.
219 134 Laws of Ohio,
page 1866, enacted Dec. 22, 1972, effective Jan. 1, 1974.
220 Id. §2.
221 Id. Ohio Revised
Code §2907.07(B).
222 Id.
223 Id.
224 Summary of Am. H.B.
511. The New Ohio Criminal Code, (Columbus:Ohio Legislative Service
Commission, 1973), page 15, §2907.07.
225 3 Sex.L.Rep. 61, decided
Nov. 23, 1977.
226 Id.
227 375 N.E.2d 781, decided
May 3, 1978.
228 Id. at 782.
229 389 N.E.2d 1128, decided
June 6, 1979.
230 Id. at 1130.
231 Id. at 1131. The
O.R.C. section quoted is 1301.01(Y).
232 Id. §1301.01.
233 Phipps, at 1131.
234 Id. at 1133.
235 Id.
236 Id. at 1135.
237 7 Ohio Misc.2d 45, decided
May 18, 1983.
238 Id.
239 No. 83-01-002, (Ct.App.,
Twelfth Dist.), decided June 30, 1983.
240 Id. at 2.
241 Id. at 3-4.
242 536 N.E.2d 648, decided
Aug. 27, 1987. Consolidated with State v. Snyder.
243 Id. at 649.
244 Id. at 650.
245 730 F.Supp. 80, decided
Jan. 25, 1990.
246 Id. at 87.
247 Id.
248 Id.
249 923 F.2d 470, decided Jan.
17, 1991.
250 143 Laws of Ohio,
page 2049, enacted Apr. 23, 1990.
251 Id. at 2053,
§2907.04 and §2907.06.
252 Stonewall Union
Reports, November 1990, page 5.
253 62 Ohio Misc.2d 51,
decided Jan. 22, 1991.
254 Id. at 53-54.
Painter mused that the legislature created a "comical" distinction in
the law by criminalizing only offensive same-sex solicitation. He suggested that
a married woman solicited by a man other than her husband was just as likely to
be offended as if she had been solicited by another woman. He rightly called the
distinction sexist. Id. at 53.
255 583 N.E.2d 479, decided
Apr. 19, 1991.
256 Id. at 482-483.
257 935 F.2d 775, decided June
7, 1991. Rehearing and rehearing en banc denied Aug. 23, 1991.
258 Id. at 777.
259 Id. at 778.
260 Id. at 779.
261 Id. Allegedly, the
neighbors were aware of the Gay nature of the swimming club and took delight in
looking at naked Gay men through binoculars. Stonewall Union Reports,
July 1991, 5:2.
262 612 N.E.2d 353, decided
July 6, 1992.
263 Id. at 355.
264 Lesbian/Gay Law Notes,
June 1995, 94:1. The case was decided Apr. 26, 1995.
265 146 Laws of Ohio
L-2455, enacted Aug. 10, 1995, effective Nov. 9, 1995.
266 767 N.E.2d 251, decided
May 15, 2002.
267 R.A.V. v. St. Paul,
505 U.S. 377 (1992).
268 O.R.C. §2950.01.
269 S.B. 160, 122nd General
Assembly, effective Jan. 27, 1997.
[Home] [Ohio] [History] [Sensibility of Our Forefathers]
|
