Sodomy Repeal May Have Led to Ohio’s Importuning Law
A Hasty Amendment to a Massive 1972 Law Reform is Now the Focus of an
Ohio Supreme Court Case
Gay
People’s Chronicle, February 22, 2002
P.O. Box 5426, Cleveland, Ohio 44101
Fax 216-631-1052
Email chronicle@chronohio.com
By Eric Resnick
The most anti-gay law in Ohio, now being reviewed by the state’s highest
court, might owe its birth to the repeal of a sodomy law 30 years ago.
The importuning law makes it a crime to ask someone for gay or lesbian sex
if it would offend them. It is unique to Ohio, and its origin is linked to a
major event in Ohio’s legislative history.
House Bill 511, passed in December 1972, completely overhauled Ohio’s
criminal codes. The first real change to Ohio’s criminal law since 1840, it
is the largest bill ever passed by the state. Lawmakers worked on the bill for
nearly seven years.
Part of H.B. 511 was the repeal of Ohio’s sodomy law criminalizing
homosexual acts between consenting adults. With that, Ohio became one of the
earliest states to decriminalize homosexuality, but behind-the-scenes
maneuvering and the political climate may have left us with the importuning
law.
The anti-gay section of the importuning law, which is section 2907.07 of
the Ohio Revised Code, is only one of its three parts. The other two deal with
sexual solicitation of children by adults. These are also covered by other
sexual offenses created by H.B. 511. Thus, the section prohibiting same-sex
inquiries is the only uniquely operational part, and the part that is now
under constitutional scrutiny by the Ohio Supreme Court.
The statute has been used extensively by police in sting operations where
gay men are arrested after asking undercover officers if they are interested
in sex.
Courts reviewing the law have asked why the legislature criminalized
homosexual solicitation at the same time it decriminalized homosexual conduct.
The answer is cloudy.
Model code had sodomy repeal
In May 1966, the Legislative Services Commission, the agency that provides
legal assistance to the legislature, convened a technical committee to review
a model penal code drafted by the American Law Institute, and being considered
in nearly every other state. The committee included legal scholars, law
enforcement officials, and select members of the House and Senate Judiciary
committees.
The model code recommended the decriminalization of homosexual acts, based
on the 1957 British Wolfenden Report, which said that "it is not the
function of the law to intervene in the private lives of citizens . . ."
making it explicit, for the first time, that morality and immorality are not
the law’s business.
Members of the technical committee agreed with this. Alan Norris, then a
Columbus Republican representative, now a federal judge, served on the
technical committee and is credited with selling its recommendations to the
House. He saw to it that the old sodomy law was repealed by H.B. 511, along
with dozens of other archaic provisions.
Benson Wolman, then executive director of the American Civil Liberties
Union of Ohio, said he discouraged members of the Columbus Gay Activist
Alliance from staging a demonstration in support of the sodomy repeal after
the final version passed the House, but prior to Senate consideration.
"It was done very quietly," said Wolman. "If it had been
raised to broad view in the legislature, it would have only required one
member to propose an amendment [putting it back] that the others could not
have refused to vote for."
A newcomer’s amendment
In fact, Joseph Tulley, a Republican from Willoughby who was also the vice
chair of the House Judiciary Committee, attempted to do just that with a floor
amendment on March 21, 1972. The amendment, which was not included in the
final bill, made it a crime for persons to "have anal intercourse or
engage in fellatio or cunnilingus with another."
According to then Parma Republican Rep. Donna Pope, lawmakers burst into
laughter when, after reading the amendment, Tulley turned and said, "I
don’t even know what fellatio and cunnilingus are."
But once Tulley had the bill opened for amendment, it was Pope who amended
it to read, "No person shall solicit a person of the same sex to engage
in sexual activity with the offender, when the offender knows such
solicitation is offensive to the other person, or is reckless in that
regard."
Pope’s motion passed by a vote of 73 to 13, and the importuning law was
born.
Pope said she didn’t recall making the amendment, when she discussed it
with the Gay People’s Chronicle 30 years later.
"I would agree that people should not be allowed to solicit if the
solicitation would be offensive," said Pope, "but that means not
just same-sex."
Pope had been appointed to serve the remainder of the term of Gertrude
Polcar, who was elected judge in Cuyahoga County two months earlier. She was
not a member of the Judiciary Committee, and indicated that since she was new
to the job, she wasn’t aware of the six-year review of sexual offenses that
had taken place.
But after discussing the language, Pope told the Chronicle that she could
have been trying to strengthen the provision making it illegal to solicit
children.
Solicitation was discussed
There is evidence, from the technical committee’s memos and miscellaneous
documents, that there was discussion by both the technical committee and the
Judiciary Committee on sexual solicitation and behavior.
A November 19, 1968 Technical Committee memorandum states, "Although
the Technical Committee agreed that consensual activity by adults should not
be the subject of the criminal law, offensive solicitation, it reasoned, is
not inconsistent with this view. The proposed statute prohibits the act of
affronting or alarming another in circumstances where such result is likely by
soliciting any person to engage in normal or deviate sexual intercourse."
The Technical Committee’s recommendation in that memorandum was to make
all unwanted sexual solicitation—same-sex and different-sex—a third degree
misdemeanor.
The House Judiciary Committee, however, was beginning to distinguish
same-sex solicitation as more offensive than different-sex solicitation.
In Ohio, committee proceedings are not recorded. Thirty years later, key
players on that committee are deceased or have unclear recollection, given
that this was such a small part of the entire criminal law reform.
But case notes in the Ohio Revised Code, which summarize committee
rationale for passage of laws, indicate that the committee believed that
"indiscreet solicitation of deviate conduct is . . . highly repugnant to
the person solicited, and there is a risk that it may provoke a violent
response."
Columbus urged not to repeal sodomy
Joe Quigley, then a civil rights activist and now an Ohio State University
law professor, recalled that Columbus revised its city codes at the same time,
and noted that a group of Christian businessmen went to the mayor demanding
that the entire package be scrapped if it included the decriminalization of
sodomy.
Quigley, who testified on many provisions when H.B. 511 was being debated,
believes that the state legislature could have been under similar pressures at
that time.
"It was the same group of people," said Quigley, "who would
have been upset by what the state was doing."
Quigley suggested that in the end, the importuning law could have resulted
from compromise that made it possible to decriminalize sodomy.
Indicating, as did others, that Norris was adamant about striking the
sodomy law, Quigley said, "It could have been that the language in the
importuning law was used as a calming effect on those who might try to put
sodomy criminalization back in."
Neither Pope nor Norris recalled any such discussion.
The Ohio Supreme Court heard arguments on the importuning law February 5.
It will rule on its constitutionality in three to six months.
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