[Cite as State v. Green, 2013-Ohio-1197.] 

 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: March 29, 2013 

John Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Jennifer 

Bishop, Assistant City Prosecutor, for Plaintiff-Appellee, 

David Hoffmann, and the Office of the Hamilton County Public Defender, for 

Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee 

 

 vs. 

DENNIS GREEN, 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-120283 

TRIAL NO. 11CRB-31331A 

 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

HILDEBRANDT, Judge. 

{¶1} Defendant-appellant Dennis Green appeals his conviction for 

solicitation. For the following reasons, we affirm. 

{¶2} In October 2011, Green asked an undercover police officer to 

engage in anal sex for $20. Green was arrested for solicitation in violation of R.C. 

2907.24(A) and loitering to engage in solicitation in violation of R.C. 2907.241. 

Green moved to dismiss the charges against him, arguing that the criminal 

statutes violated his substantive-due-process rights. The trial court denied the 

motion. Green then entered a no-contest plea to solicitation, and in exchange the 

state dismissed the loitering charge. Green was sentenced to 60 days in jail with 

55 days suspended, and one year of community control. The trial court stayed his 

sentence pending this appeal. 

{¶3} In his single assignment of error, Green contends that because the 

solicitation statute is unconstitutional, the trial court erred by denying his motion 

to dismiss the solicitation charge. Green argues that the liberty component of the 

Due Process Clause protects the act of consenting adults engaging in sexual 

activity for hire; i.e., prostitution, and, therefore, the solicitation of another adult 

to engage in prostitution is a fundamental right that may not constitutionally be 

prohibited by the state. We are unpersuaded. 

{¶4} In addressing Green’s assignment, we must presume that the state 

statute prohibiting solicitation, R.C. 2907.24, is constitutional. The burden is on 

Green to prove otherwise. Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 

N.E.2d 633, ¶ 4. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶5} R.C. 2907.24(A) provides that “[n]o person shall solicit another to 

engage with such other person in sexual activity for hire.” 

{¶6} There are two tests used to assess the constitutionality of a 

statute under the Due Process clause: strict scrutiny or rationalbasis scrutiny. When the law restricts the exercise of a fundamental 

right, the strict-scrutiny test is used. A statute survives strict 

scrutiny if it is narrowly tailored to serve a compelling state interest. 

* * * Where there is no fundamental right at issue, a rational basis 

test is used to protect liberty interests. Under the rational-basis 

test, a statute survives if it is reasonably related to a legitimate 

government interest. 

State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18. 

{¶7} We first must decide whether there is a fundamental right to 

engage in sexual activity for hire, and thus, to solicit that activity. We hold that 

there is not. While no Ohio court has addressed the constitutionality of R.C. 

2907.24, the Eighth Appellate District, in addressing a constitutional challenge to 

a municipal ordinance prohibiting solicitation, held that there was no 

fundamental right affected by the solicitation ordinance. Cleveland v. Huff, 14 

Ohio App.3d 207, 208, 470 N.E.2d 934 (8th Dist.1984). Further, courts in other 

jurisdictions considering solicitation statutes similar to R.C. 2907.24 have held 

that there is no fundamental right to engage in sexual activity for hire or to solicit 

another for such. State v. Henderson, 269 N.W.2d 404 (Iowa 1978); Lutz v. 

United States, 434 A.2d 442 (D.C.App.1981). 

{¶8} Green cites to Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 

156 L.Ed.2d 508 (2003), for the proposition that prostitution is a fundamental 
OHIO FIRST DISTRICT COURT OF APPEALS

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right. In Lawrence, the United States Supreme Court overturned a Texas statute 

that criminalized “deviate sexual intercourse” between individuals of the same 

sex. Green argues that the holding in Lawrence recognized that private sexual 

activity between consenting adults is constitutionally protected under the Due 

Process Clause. We disagree. First, the Lawrence court specifically pointed out 

that the issue before it did not involve prostitution. Id. at 578. Second, the Ohio 

Supreme Court, in addressing whether the United States Supreme Court in 

Lawrence had announced a new “fundamental right to all consensual [sexual] 

activity,” held that it had not. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 

N.E.2d 512 at ¶ 24. 

{¶9} Given that there is no fundamental right to engage in sexual 

activity for hire, we employ a rational-basis review to assess the constitutionality 

of R.C. 2907.24. Here, the solicitation statute is rationally related to the 

legitimate government interest in public health, safety, morals and general 

welfare. For example, the solicitation statute is reasonably related to promoting 

the state’s interest in public safety by prohibiting the first step toward committing 

the act of prostitution, a crime in Ohio. Huff, 14 Ohio App.3d at 209, 470 N.E.2d 

934. Further, the state has a legitimate interest in controlling the health hazards 

posed by prostitution. See Colorado v. Mason, 642 P.2d 8, 12 (Colo.1982). And, 

finally, the state has an interest in maintaining a decent society, and the 

stemming of commercialized sexual solicitation is an acceptable means of 

furthering this interest. See United States v. Moses, 339 A.2d 46, 54 

(D.C.App.1975). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶10} In conclusion, because the solicitation statute reasonably relates to 

the state’s interest in protecting public health, safety, morals and general welfare, 

we hold that R.C. 2907.24(A) is constitutional. 

{¶11} The single assignment of error is overruled. 

Judgment affirmed. 

DEWINE, J., concurs. 

HENDON, P.J., concurs in judgment only. 

Please note: 

 The court has recorded its own entry this date.