Last edited: February 14, 2005

High Court Asked to Review Ohio’s Gay-Only Proposition Ban

Gay People’s Chronicle, May 4, 2001
P.O. Box 5426, Cleveland, Ohio 44101
Fax: 216-631-1052

By Anthony Glassman

Jefferson, Ohio — An Ohio law making it a crime to proposition someone of the same sex may be challenged in the Ohio Supreme Court.

Under Ohio’s "importuning" law, 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 heterosexual situations.

The statute is often used for police stings in parks, where gay men are charged for asking an undercover officer if they are interested in sex.

But Eric R. Thompson was not in a park when he was charged with importuning on July 26, 1999. As he was returning from driving his father to work in Jefferson, he stopped to ask a male jogger if he wanted oral sex. When the jogger said no, Thompson left, but he jogger complained to police.

Thompson’s attorney, Ashtabula County public defender Marie Lane, moved to dismiss the charge, arguing that the law violates federal and state constitutional rights to equal protection under the law. The trial court rejected the motion, and convicted Thompson.

Since Thompson was on parole for an earlier burglary conviction, he was returned to prison and served the rest of his sentence, plus six months for importuning. He was released in January 2001.

Lane appealed the conviction, and the case went to the Ohio Eleventh District Court of Appeals in Portage County. That court upheld the conviction in December 2000, but did so 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 commented in its ruling. "It is inherently inconsistent for the Ohio legislature to now criminalize homosexual solicitation after it has chosen to decriminalize homosexual conduct between consenting adults."

The legislature decriminalized gay sex when it repealed Ohio’s sodomy law in 1973.

"Further, it is without a doubt that heterosexual solicitation may be equally repugnant, offensive, and inciteful to violence as homosexual solicitation," the court continued.

However, the appeals court found that in two previous cases, the Ohio Supreme Court has upheld the importuning law. One challenge was based on different constitutional arguments, and the other did not provide a published decision, something Lane says renders that case non-binding as a precedent.

The prosecutors in the case argued that the law did not violate equal protection provisions, since any person soliciting a member of the same sex, whether they were gay or not, could be charged under the law.

The appeals court, however, found that the argument did not hold under scrutiny.

"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, referring to a California case cited in their ruling. The court also noted that, while it viewed the prosecutors as "defending the undefendable," "We appreciate the fact that the prosecution has little choice but to defend."

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.

Two gay and lesbian groups, the Lambda Legal Defense and Education Fund and the Ohio Human Rights Bar Association, have filed friend-of-the-court briefs in the case, along with the Ohio Association of Criminal Defense Lawyers. The Ashtabula County prosecutor’s office is also pressing for the court to take up the case.

Lane, however, has a more pressing reason for pursuing the case. For her, it is about fairness, and protecting those she loves.

"Honestly, it’s really unfair," she said. "I have a lot of gay friends, and the thought that my dear friend Jimmy could be arrested for this upsets me."

The Ohio Supreme Court has not yet announced whether they will hear the case.

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