Sex Toys and the Law

Sex Toys and the Law

Sex Toys and the Law

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Timeline of recent legal event with bearing on sex toys

Timeline of recent legal event with bearing on sex toys

1973: Texas Obscenity Law passed
1986: Bowers v. Hardwick: SCOTUS rules there is no fundamental right to sexual privacy (outside of
procreation)
1998: Alabama amends its obscenity statute to preclude the sale of sex toys.
2000: Williams v. Attorney General of Alabama (Pryor), ban upheld, 11th Cir.
2003: Lawrence v. Texas: SCOTUS overturns Bowers and recognized sexual privacy as a fundamental
right.
2007: In light of Lawrence, the ACLU again challenged the 11th Cir. decision to uphold the Alabama
ban. SCOTUS declined to hear the case.
2008: In Reliable Consultants v. Abbot, the 5th Circuit Court of Appeals struck down a Texas statute
nearly identical to the Alabama ban.
2009+: Will SCOTUS grant certiorari to settle the split between the circuit courts?


Sex Toy Bans in Recent Constitutional Decisions

 

Sex toys, a term that usually refers to products that are intended to be used to aid in sexual stimulation or expression in some way (also known as marital aids or adult novelty products), have had an uneasy relationship with the law ever since they began being shown in erotic films. Once these objects (vibrators, dildos, and other items used by adults to enhance their sexual experiences) started being shown in films designed to appeal to the viewers’ prurient interests1, legislation began to control their sale. Many states including Texas, Mississippi, Alabama, Louisiana, Kansas, and Colorado banned the sale of devices intended to provide sexual stimulation of the genitals, though most of those bans have since been overturned on Constitutional grounds.

Two recent circuit court rulings may eventually push the Supreme Court into granting certiorari and settling the conflict between the lower courts.

Alabama

In 1998, the Alabama legislature passed a law amending the Alabama Code to make the distribution of certain devices a criminal offense. After the amendment, the Alabama Code obscenity provisions stated, “It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.” Exceptions were permitted for “bona fide medical, scientific, educational, legislative, judicial or law enforcement purposes.” A first violation was a misdemeanor punishable by a maximum fine of $10,000 and up to one year of jail or hard labor. A subsequent violation was a class C felony. Vendors and users of such devices filed a challenge. The district court declined to hold that the statute violated a constitutional right but ruled the ban unconstitutional because it lacked a rational basis.
The State of Alabama appealed the decision, arguing that “a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex" and that “it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.”2 The 11th Circuit Court accepted this argument and agreed with the district court’s rejection of the constitutional challenge that there was a privacy right at stake. Although he court recognized that Roe v. Wade guaranteed privacy protections from government interference within the framework of procreation, it argued that “none of these cases…is decisive on the question whether the Constitution protects every individual's right to private sexual activity and use of sexual devices from being burdened by Alabama’s sexual device distribution criminal statute.”
The Supreme Court’s decision in Bowers v. Hardwick precluded extending the constitutional right to privacy to include a broad fundamental right to all sexual autonomy (such as the rights of consenting adults to use, buy, or sell sex toys). Bowers was overturned by the Supreme Court holding in Lawrence v. Texas (2003), and, in February of 2007, the ACLU challenged the 11th Circuit decision upholding the Alabama ban. The 11th Circuit Court argued that the Lawrence Court “declined the invitation” to recognize a fundamental right to sexual privacy and that therefore a rational basis test was an appropriate test for the constitutionality of the Alabama ban. Finding that public morality, the purpose of the statute, serves as a rational basis for legislation, the 11th Circuit once again upheld the Alabama statute.
On October 1, 2007, the Supreme Court declined certiorari.

Texas

In 1973 the state legislature passed Section 43.21 of the Texas Penal Code which, in part, prohibits the sale or promotion of “Obscene device[s]” mean[ing] a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Section 43.23 of the code deals with promotion ("A person commits an offense if he…possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices…is presumed to possess them with intent to promote the same."). This section carried higher penalties, and for this reason, those businesses that traded in items covered under the act usually marketed them as “novelties” or "educational items.
Two companies filed suit to declare the Texas Statute unconstitutional and the 5th Circuit Court of Appeals overturned the statute on February 12, 2008 by a vote of two to one. In Reliable Consultants v. Abbot (5th Cir. 2008) (Texas), the court held that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.” The majority opinion stated, “Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”3
The State of Texas, through Attorney General Greg Abbott, argued that the state