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Sex Toys and the Law

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.

1 Marked by or arousing an immoderate or unwholesome interest or desire; especially: marked by, arousing, or appealing to sexual desire, Merriam Webster Dictionary.

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