Ohio "Importuning" Law May Face State Supremes
Datalounge,
May 4, 2001
JEFFERSON, OH — An Ohio law which
makes it a crime to sexually proposition someone of the same sex may be
challenged in the Ohio Supreme Court, the gay newspaper Gay People’s
Chronicle reports.
Ohio’s "importuning" law makes it is a first-degree misdemeanor
to solicit a "person of the same sex to engage in sexual activity,
knowing that such solicitation was offensive to the other person or being
reckless in that regard." The law does not apply to members of the
opposite sex.
The paper says that police often cite the statute in making arrests at
cruising areas. Gay men are brought up for violating the statute if they so
much as hint to an undercover that they are interested in sex.
The case that may go before the court concerns Eric Thompson, who solicited
a jogger. The jogger declined Thompson’s advance and he shrugged it off, but
the jogger later complained to police.
Thompson’s attorney, Marie Lane, moved to dismiss the charge, arguing
that the state law violates federal and state constitutional guarantees to
equal protection under the law. The trial court rejected the motion. As the
defendant was on parole for an earlier burglary conviction, Thompson was
sentenced to jail and given an additional six months on the
"importuning" violation.
Lane appealed to the Ohio Eleventh District Court of Appeals, which upheld
the conviction in December 2000, albeit reluctantly. "What is not clear
is why [the law] would only apply to same sex solicitation and not to opposite
sex solicitation," the appeals court said in its ruling.
Given that the Ohio legislature decriminalized gay sex when in repealing
the state’s sodomy law in 1973, the court said, "It is inherently
inconsistent for the Ohio legislature to now criminalize homosexual
solicitation after it has chosen to decriminalize homosexual conduct between
consenting adults."
"Further," the court continued, "it is without a doubt that
heterosexual solicitation may be equally repugnant, offensive, and inciteful
to violence as homosexual solicitation."
Despite these misgivings, the appeals court was forced by precedent in
upholding the conviction, noting the Ohio Supreme Court upheld the importuning
law on two separate occasions. Lane says that because one earlier challenge
was based on different constitutional arguments, and the other did not provide
a published decision, the precedents are non-binding.
State prosecutors argued the importuning law did not violate equal
protection provisions, since any person soliciting a member of the same sex,
regardless of whether they were gay or not, could be charged under the law.
The appeals court offered a withering rebuttal to the argument.
"It is somewhat unnerving to find that the ‘pregnant men are treated
the same as pregnant women’ rationale is alive and well today," the
court wrote. The appeals court also urged the Ohio Supreme Court to look into
the matter and provide a written decision based on the equal protection
argument.
The justices serving on the state high court have not yet announced whether
they will hear the case.
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