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After statehood, this law was repealed by a statute of 1804,3 thus legalizing sodomy.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Be that as it may, in 1806, the reception statute again was repealed,6 this time permanently.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 1˝-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.


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