Summary
In Perrin, the defendant was found not guilty of violating R.C. 2907.07(B) by the Hamilton County Municipal Court on the basis that the solicitation did not amount to fighting words, which would incite an average person to immediate fisticuffs.
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No. 90-TRC-48769.
Decided January 22, 1991.
Ernest F. McAdams, Jr., Assistant City Prosecutor, for plaintiff.
Jonathan M. Ullner, for defendant.
This matter was argued before the court on October 29, 1990, the defendant, Henry K. Perrin, having been charged with importuning, in violation of R.C. 2907.07(B). The facts are not disputed, and were stipulated by the parties on a "no contest" plea.
Defendant was driving through Ault Park in Cincinnati when he noticed two men parked by the side of the road. Defendant approached the passenger side and engaged the passenger in conversation. While remaining in his automobile, defendant asked the other man "what he was into." After some additional pleasantries, defendant told the other man that he would like to "suck" him. Immediately upon hearing this word, the other man revealed that he was an undercover police officer and proceeded to arrest defendant for importuning. The officer noticed that defendant was under the influence of alcohol, and subsequently also charged him with violation of R.C. 4511.19, driving under the influence. Defendant entered a no contest plea and was convicted of that charge.
Defendant was also arraigned on the importuning charge on October 25, 1990 and entered a plea of no contest. The matter was then set for argument on October 29 and the following issues were raised: (1) the constitutionality of R.C. 2907.07(B), and (2) assuming constitutionality, the failure of the state to meet the burden established in State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128, for a violation of the importuning statute.
R.C. 2907.07(B) states as follows: "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."
Obviously, only a person soliciting someone of "the same sex" can be guilty of violating this section. There is no provision prohibiting the solicitation of someone of the opposite sex (unless for money) anywhere in the code.
The first issue we are asked to address is the constitutionality of R.C. 2907.07(B). While this statute has survived a challenge of vagueness and of being unduly restrictive of First Amendment rights, State v. Phipps, supra, it seems more reasonable to analyze it under equal protection standards. The first inquiry under equal protection analysis is whether the group affected is a "suspect class." Such suspect classes include race, alienage and national origin. The weight of current authority refuses to acknowledge homosexuality as a suspect class. See Ben-Shalom v. Marsh (C.A.7, 1989), 881 F.2d 454, certiorari denied (1990), 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473; High Tech Gays v. Defense Industrial Security Clearance Office (C.A.9, 1990), 895 F.2d 563, rehearing denied (1990), 909 F.2d 375; Woodward v. United States (1989), 871 F.2d 1068, certiorari denied (1990), 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473. We do not need to reach this issue, however, considering that it is not necessary, given the facts of this case, to determine whether homosexuality is a suspect class requiring R.C. 2907.07(B) to be subject to "strict scrutiny."
If homosexuals are not a suspect class, we would then analyze the statute in question under the traditional rational basis test. We would proceed to determine whether the statute is "reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." F.S. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-991. The only justification for punishing only homosexual conduct can be found in the Committee Comment to the statute. The stated rationale is that the solicitation in itself can be highly repugnant to the person solicited, and there is risk that it may provoke a violent response. This rationale it seems would be a good one if applied indiscriminately to all such solicitations. It seems almost comical that the legislature expects a different, non-violent response if a man solicits another man's wife. "Leroy Brown learned his lesson 'bout messin' with the wife of a jealous man." Such solicitation may be as repugnant to the wife as being solicited by another female. Of course, the legislature must have assumed that women needed no protection from offensive solicitation from men, a sexist attitude at best.
We can perceive of no rational basis for burdening only homosexuals with criminal liability for conduct which, if practiced by heterosexuals, would be entirely lawful. As Justice Stewart stated in Rinaldi v. Yeager (1966), 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577, 580: "[T]he Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have `some relevance to the purpose for which the classification is made.'"
The only Ohio case located of relevance is State v. Faulk (Sept. 13, 1978), Hamilton App. No. C-77486, unreported, which applied similar reasoning in holding R.C. 2907.07(B) unconstitutional on its face. However, the Ohio Supreme Court reversed Faulk (without opinion, case No. 78-1443, June 6, 1979) on authority of State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128. We find this result puzzling since Faulk was predicated on equal protection grounds, while Phipps dealt with vagueness. Nevertheless, we might still feel compelled to hold that R.C. 2907.07(B) is unconstitutional on its face because there is no rational basis for imposing criminal liability for solicitation only upon homosexuals when heterosexual solicitation might be equally repugnant. However, we need not reach that result since a finding of unconstitutionality is not necessary to our decision in this case, and proper judicial restraint dictates that a court not decide constitutional issues if the same result is reached on other grounds. State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St.2d 117, 119, 49 O.O.2d 440, 441, 254 N.E.2d 15, 17; State v. Sidell (1972), 30 Ohio St.2d 45, 49, 59 O.O.2d 74, 76, 282 N.E.2d 367, 369.
In addition to defendant's allegation that there exists no rational basis for burdening only homosexuals with criminal liability for conduct that would be entirely lawful if engaged in by heterosexuals, no matter how offensive or provocative of violence, we are asked to reach the same result in the case even if the statute be constitutional.
In State v. Phipps, supra, the Ohio Supreme Court, although holding that R.C. 2907.07(B) was not void for vagueness or violative of the First Amendment's guarantee of free speech, held that the alleged conduct must rise to "fighting words" to be violative of the importuning statute. Thus, in order to be constitutional under a First Amendment analysis, the words must be much more than conversation.
The United States Supreme Court, in Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, first defined fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Later in Terminiello v. Chicago (1949), 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, the court narrowed the scope of fighting words by stating that making the listeners angry is not enough; incitement to violence is required. Finally, in Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, the court held that profane, offensive language is nonetheless protected First Amendment speech.
Therefore, for defendant to be convicted of importuning, his solicitation must rise to the level of inciting an immediate breach of the peace. See, also, State v. Hoffman (1979), 57 Ohio St.2d 129, 11 O.O.3d 298, 387 N.E.2d 239; Cincinnati v. Karlan (1974), 39 Ohio St.2d 107, 68 O.O.2d 62, 314 N.E.2d 162.
In the instant case, defendant remained in his car when speaking to the undercover officer. The parties were separated by two car doors and a space in between, and both were seated — either was free to drive away (at least initially, until the defendant was arrested). Clearly, this is not enough to incite an average person to immediate violence. Had the defendant persisted in his solicitation or exited his car to become in closer proximity with the "victim," the conduct may have approached "fighting words." Had there actually been any physical contact, the actions might certainly have reached the "fighting words" threshold. However, in this case, with nothing more, defendant's conduct does not meet the level established in State v. Phipps, supra, and therefore defendant is found not guilty.
Defendant discharged.