"Tell me what's rational about this statute," demands Judge Patricia Blackmon. She's hearing the appeal of Joseph Maistros, who, two years ago, propositioned a fellow student in a Cleveland State bathroom.
The victim and his friends called the cops and chased Maistros across the street to a pizza joint, where police charged him with "importuning." Under the state law, passed in 1973, asking someone of the same gender for sex in an offensive way is punishable by up to six months in jail.
Maistros was found guilty at a trial last year, and though his jail sentence was suspended, he must now register as a sex offender. On this day in July, he's challenging the law before the state court of appeals.
Fortunato says the law protects "the right to be left alone." But Judge Colleen Conway Cooney isn't buying.
If Maistros had done the same thing in the ladies' room, Cooney notes, he would have faced only a disorderly conduct charge, punishable by a mere fine. "Doesn't that trouble you?"
Fortunato says the law is more specific and easier to use than a disorderly conduct charge. But as the hearing ends, it looks as if he's going to lose, 2-1. Judge Frank Celebrezze appears sympathetic, but Cooney and Blackmon seem more impressed with Maistros's attorney, Kenneth Rexford, who argues that the importuning law discriminates according to sexual orientation and gender. The court could issue its decision anytime in the next several months.
Police across Ohio have used the importuning statute to arrest gay men. But it may not stay on the books much longer. In May, the Ohio Supreme Court agreed to hear the case of Eric Thompson, who got six months in jail for propositioning a male jogger in Jefferson, near Ashtabula. In that case, an appeals court reluctantly went along with the Supreme Court's 1979 ruling upholding the law, but asked the justices to reconsider it.
The law "shows the state thinks gay and lesbian people are second-class citizens," says Heather Sawyer, an attorney for the Lambda Legal Defense and Education Fund, a national gay-rights organization that has taken Thompson's side in the case.
Sawyer also argues that police use the importuning law "as a way of intimidating and threatening gay men." In other Ohio cases, she says, cops "engage in friendly conversation with a gay man, and when the man asks for sexual activity, he gets charged with a crime." In a park outside Canton in 1998, an undercover policeman got into a conversation with a man near an outdoor restroom, then arrested him after the man asked the officer to join him inside for sex. In Oxford in 1997, a cop arrested a man in a Miami University bathroom after exchanging notes on toilet paper.
And in Garfield Heights four years ago, an undercover Metroparks ranger followed a man into a bathroom and saw him peek through a hole in a stall. "What are you looking for?" the ranger asked the man. The man proposed sex, and the ranger arrested him.
This spring, plainclothes police used the law in their crackdown on gay sex at a park near Dayton. But the charge isn't used much in the Cleveland area. Metroparks Captain Greg Loftus says his force sets up undercover busts of sex crimes only after citizen complaints, and rangers haven't arrested anyone for importuning in at least 18 months. Cleveland police records show no arrests in the last 12 months.
Even Maistros admits that badgering a stranger for sex is offensive. He says he looked over and under the stall wall and propositioned the man next door with a gesture: He yanked his wrist up and down to pantomime a hand job. He denies saying he wanted to "ass fuck" the man, but he agrees he was out of line. "Yeah, I think I was definitely invading his privacy."
But why should only gay men get six months in jail for being creeps? After all, if every offensive proposition carried a six-month sentence, the jail time earned in the Flats at last call would be staggering.
"Certainly the most egregious victims of sexual come-ons or sexual harassment are heterosexual women," says Bob Bucklew, health and wellness director at the Lesbian-Gay Community Service Center of Greater Cleveland. "If [legislators are] wanting to address the issue of unwanted sexual advances, why don't they protect the people who have to deal with them the most?"
Bucklew was infuriated when he read the city's original defense of the importuning law. "In the present case, relations between men and women are not the same as relations between men and men or women and women," wrote lawyer Jay Cole. "They are different morally. They are different physically. They are different legally." One difference Cole cited: "If a male solicits a female, the female is not likely to react violently . . . even if she is offended."
"If women want to be protected," muses Bucklew, "what the City of Cleveland's saying is, women need to start kicking some ass. Then there will be a law to protect them."
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