State v. Sharpe
| Decision Date | 18 January 1965 |
| Citation | 1 Ohio App.2d 425,205 N.E.2d 113 |
| Parties | , 30 O.O.2d 432 The STATE of Ohio, Appellee, v. SHARPE, Appellant. |
| Court | Ohio Court of Appeals |
William A. McClain, City Sol., Ralph E. Cors and Joseph H. Johnson, Cincinnati, for appellee.
Frederick Valentine, Cincinnati, for appellant.
Appellant was convicted in the Municipal Court of Cincinnati on a charge of soliciting an unnatural sex act contrary to the provision of Section 2905.30 of the Revised Code, as amended effective October 4, 1963. A demurrer was filed in the court below on various grounds, including the claim that the statute was void for want of certainty in that it failed to provide any definition of or standard for determining what may or may not be 'an unnatural sexual act.' The claim was renewed during trial at the end of the state's case by motion. Both demurrer and motion were overruled in the court below. The transcript of the docket and journal entries filed in this court fails to indicate that the demurrer was actually overruled; however, reference to the bill of exceptions establishes that this was so.
The assignments of error filed in connection with this appeal raise substantially the same questions as the demurrer and the motion to dismiss and claim that, in addition to the above, the court erred in failing to define 'an unnatural sex act' in its charge to the jury. Other assignments of error of the appellant are either of no importance or were specifically waived in the course of argument in this court. The demurrer and motion above sufficiently raise a constitutional question.
Counsel for both parties, by beief and during oral argument, admit that they have been unable to find in reported cases or in any of the usual sources of legal authority, any definition of the phrase 'unnatural sexual act.' With one possible exception, hereinafter noted, the court finds itself in much the same position. This condition in and of itself provides some reasonable basis to doubt whether the phrase in question is actually susceptible to that certainty of definition which is ordinarily required in criminal offenses. We find no previous cases dealing with the amended provisions of this 'new' crime.
Much authority can be found dealing with and defining such terms as 'sexual offenses,' 'sexual perverts,' 'sexually indecent,' 'unlawful sexual intercourse,' 'sex perversion' and similar phraseology. None of them fits the requirements of the amended Ohio statute. Both parties refer to Jaquith v. Commonwealth (1954), 331 Mass. 439, 120 N.E.2d 189. In that case the court was concerned with a statute making it an offense to commit 'any unnatural and lascivious act with another person' in which, to epitomize the lengthy opinion, it was held 'that 'an unnatural and lascivious act' are words of common usage with a well defined, well understood, and generally accepted meaning, signifying irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners * * *.' It is suggested by appellant that there is a distinction of sorts between an unnatural sex act and one that is unnatural and lascivious. However, so far as this court is concerned, while there may be a difference which would tend to strengthen the Massachusetts decision, the difference is not determinative of the question here.
The sociological and biological range of sex acts is almost infinite, going from socalled Freudian impulses, alleged by some to exist in all human behavior, to the viewpoint that all sex acts which do not lead to the production of offspring are unnatural. Disregarding these extreme viewpoints, it is yet apparent that many sex acts which may be logically classified as unnatural have widespread acceptance and frequent use. By way of example: Certain types of birth control are obviously unnatural; also, the practice of artificial insemination, although rare and frequently criticized, would certainly not be intended to be a criminal act under this statute, albeit it is obviously unnatural. Various types of sex acts useful in or even required for medical diagnostic practices are equally unnatural. Depending upon laws in existence in most states but varying distinctly between them, such things as intercourse within certain proscribed age limits, incest depending upon a varying degree of relationship, and, possibly in some states, even miscegenation, are considered both...
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Balthazar v. Superior Ct. of Com. of Mass.
...vague, include: Harris v. State, 457 P.2d 638 (Alaska 1969); Franklin v. State, 257 So.2d 21 (Fla.1971); State v. Sharpe, 1 Ohio App.2d 425, 205 N.E.2d 113 (1965). 8 Mass.Gen.Laws ch. 272, § 53 proscribes "lewd, wanton and lascivious" behavior. Petitioner, however, was not charged with bein......
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State v. Levitt
...(1975). The cases relied on by defendant to support his view are clearly distinguishable. In neither State v. Sharpe, 1 Ohio App.2d 425, 30 Ohio Op.2d 432, 205 N.E.2d 113 (1965) ('unnatural sex act'), nor Harris v. State, 457 P.2d 638 (Alaska 1969) ('crime against nature'), was a prior judi......
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Balthazar v. Superior Court of Com. of Massachusetts, No. 77-1159
...the language "unnatural carnal copulation" was held to be too vague as applied to homosexual anal intercourse. State v. Sharpe, 1 Ohio App.2d 425, 205 N.E.2d 113 (1965), held "unnatural sex act" vague as applied to sodomy. Such statutes have also been applied to widely dissimilar forms of c......
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Com. v. Balthazar
...statutes utilizing language of this general character have been struck down on due process grounds. See, e.g., State v. Sharpe, 1 Ohio App.2d 425, 205 N.E.2d 113 (1965) ('unnatural sex act'); Harris v. State, 457 P.2d 638 (Alaska, 1969) ('crime against nature'); Franklin v. State, 257 So.2d......
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Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...187 A.2d 136 (R.I. 1962) (adult male induced 16 year old male to go to his room for the purpose of performing fellatio). State v. Sharpe, 205 N.E.2d 113 (Ohio Ct. App. 1965) (adult male solicited unnatural sex act and was Allan v. State, 541 P2d 656 (Nev. 1975) (arguably "consensual" fellat......