Last edited: February 14, 2005

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

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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