Talking Dirty Got Him Arrested
Max's Road to Justice

by Deb Taylor

"When I see a police car now I get this sick feeling. Of course, it's not like I think they're out to get me but it's different than the instant relief I used to FEEL. I used to say 'Oh, there's a police car. I feel safe.' I have a lot of anger now."

For Max Movsovitz, total respect for law enforcement took a sharp turn toward cynicism on the afternoon of April 28, 1995. That day, he was arrested in Gage Park in Topeka, Kansas for admitting his willingness to leave the park to have sex with an undercover Topeka police officer at his home. Now, almost three years later, Max is waiting for the Kansas Court of Appeals to rule on whether Kansas' same-sex sodomy law and a Topeka solicitation ordinance based on that law are unconstitutional and should be struck down. Currently, Kansas joins Missouri, Arkansas, Maryland, Oklahoma and Texas as the handful of states where heterosexual sodomy is legal but same-sex sodomy is illegal.

According to Matt Coles, Director of the ACLU's National Lesbian and Gay Rights and AIDS/HIV Projects, both the Kansas law and the Topeka ordinance are discriminatory and violate equal protection clauses of the U.S. and Kansas Constitutions. States Matt, the issue at large boils down to one question: Do we have one rule for all citizens or do we have two rules for different groups?

Topeka city attorney John Knoll counters: the issue is that the state and city have a right on moral grounds to prohibit same-sex sodomy. He adds, "The Constitution doesn't change to conform to current fashion. Max broke the law. Max must deal with it."

Max was cited with "Solicitation of Sodomy" under Topeka's City Code 54-133 which states that "It shall be unlawful upon the streets or in other public places within the corporate limits of the city for any person to solicit or agree with any other person to participate in an act of prostitution or sodomy." In Kansas, sodomy is defined as "oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex . . ." Simplified, the Kansas law says heterosexuals can freely have oral and anal sex as long as no money is exchanged. For homosexuals, oral and anal sex spells sodomy, which is illegal. Also, homosexuals can be arrested for merely talking about having sex. As a Topeka reporter stated years ago, "talking dirty in Gage Park can get you arrested."

Like most gay Topekans, Max knew that many arrests were being made in Gage Park. He assumed the men were getting arrested for either actually having sex in the park or for soliciting sex. Since he was not interested in either activity, he felt fairly safe and therefore had no hesitation about stopping by Gage Park to enjoy the spring weather and look over some work-related drawings he had recently photocopied.

When the first plainclothes officer, posing as a shy college student, drove up to Max in a burgundy-colored four-door sedan, Max was polite and even answered the "student's" questions about gay life in Topeka. Max even encouraged him to be careful in Gage Park, explaining that it was not ok to have sex in the park. The plainclothes officer left.

Enter Officer Tom Pfortmiller, who played eye games with Max for a few minutes and lit a cigarette before driving up next to him. Pfortmiller, posing as a gay man looking for fun, wasted no time asking Max if he was meeting someone in the park. Only seconds into the conversation, Pfortmiller told Max he was looking for a friend. "Are you into that?" he asked Max.

Still a few seconds later, after asking Max a few questions of a sexual nature, Pfortmiller pointedly asked him "What would you like to do to me?"

After some initial hesitation, Max admitted that he was "into oral sex."

Pfortmiller asked, "Would you do that to me?"

Max: "Yeah, sure."

Before Max had a chance to invite Pfortmiller back to his house, the officer immediately announced, "I'm with the police department . . ."

As Max puts it, in one afternoon, he had gone from "an honest, hard-working, law-abiding, responsible, tax-paying citizen to a charged criminal, with my name soon to appear in the local newspaper." Struck with the absolute absurdity of being arrested because an undercover cop solicited him, Max decided to challenge the Topeka ordinance.

On the morning following his arrest, because it was a weekend, Max signed up with an internet service provider so that he could immediately begin his search for legal help. Additionally, in the next several days he made 40 to 50 calls all over the U.S.

He explained that he wasn't trying to fight the facts: "Yes, I said oral sex." Max was hoping to challenge the validity of a law that could make gays criminals for publicly consenting to have sex in the privacy of their own homes.

With only two days left to decide whether to pay the $500 fine or get a court date in Municipal Court, Max was eventually directed to Topeka attorney John Ambrosio, who agreed to take the case pro bono.

In December of '95, Max was convicted of violating Topeka's ordinance against solicitation of sodomy following his trial in municipal court. He was ordered to pay $499 and stay out of Gage Park for two years, a sentence similar to that of the nearly 60 other men who were arrested in the year-long sting operation.

The following year, he appealed his case to Shawnee County District Court; it upheld the lower court's. His appeal is now in the Kansas Court of Appeals, awaiting a ruling.

Support from friends--both gay and straight--and family has kept Max going through his painful three-year ordeal. Encouragement and comfort from friends like neighbors Dave and Sue enabled Max to survive the emotionally draining agony this experience brought in the early months. Max feels that much of the intensity has lessened, due in large part to the commitment of groups like the ACLU and the Washburn University (Topeka) Law School Gay and Lesbian Network. "I'm a part of something bigger now," explains Max. "[The focus is on] the Constitution, not "What were you doing in Gage Park?' Now, it's the principle."

Gay and lesbian legal experts are ready to see Kansas' sodomy law change. According to Evan Wolfson of Lambda Legal Defense, "It's a waste of taxpayers' money to spend needless time on undercover work and having police officers sashaying about the park." He argues that standing up to this is critical. Adds John Ambrosio, "If they know you're going to fight, you're going to wear them down. We need more people to fight."

Max realizes that others may have to come forward and join the legal fight, particularly each time he loses in court. Despite the disappointment, he remains optimistic and is content to go on with his life while he waits for the resolution of his legal battle. As a self-employed artist, he hasn't had to worry about pressure from employers. But Max wonders if the publicity surrounding his case will affect his ability to find a graphics design job in the future. For now, though, his investment is in seeing Kansas' anti-same-sex laws changed: "I cannot accept that we are a criminal class of people, and we shouldn't have to live as criminals by our very existence."

In April 1995, in the very same newspaper article that listed Max's, a Topeka Capital-Journal reporter wrote that while police officers were in Gage Park for the sting operation, they encountered men who they suspected were there to gay-bash. The article reported that the suspects were simply asked to leave the park. Max finds it incomprehensible that the City of Topeka can enforce laws against consenting adults who merely talk about having sex but not enforce laws against those who want to harm other people. As Max insightfully notes, "Something is wrong here."

The Kansas Court of Appeals Decision was reached on April 24, 1998. Click here for more information.

Copyright 1998, Deb Taylor