Thursday, July 29, 2004

Sex Toys in Alabama: Own, Use, Give - But Don't Sell 

In a 64-page opinion, the 11th Circuit Court of Appeals has upheld Alabama's statute prohibiting "the sale—but not the use, possession, or gratuitous distribution—of sexual devices" which are "designed or marketed as useful primarily for the stimulation of human genital organs," as reported on Earthlink.  You can view the Alabama code here.  Unfortunately, the site doesn't allow a direct link, so once you're on the page, just click through to Section 13A-12-200.2.  Opinion author Circuit Judge Birch, points out that the sale of lots of things are allowed under the statute: 
The law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not “designed or marketed . . . primarily” for that particular purpose. Id. Finally, the statute  exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”
This statute is from the Criminal Code Chapter on Offenses Against Public Health and Morals.  How is it that the possession, gift, use, or transportation into the state of these items isn't a problem, but the sale of them is a threat to public health and morals? 

The court rejected the ACLU's request that it recognize a constitutional right to sexual privacy.  The opinion does point out that: 
If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter.
Circuit Judge Barkett dissents: 
The majority’s decision rests on the erroneous foundation that there is no substantive due process right to adult consensual sexual intimacy in the home and
erroneously assumes that the promotion of public morality provides a rational basis to criminally burden such private intimate activity. These premises directly conflict with the Supreme Court’s holding in Lawrence v. Texas, 123 S. Ct. 2472 (2003).

This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.
A similar statute is being challenged in Texas.  Misdemeanor charges have recently been dropped against Joanne Webb, a consultant for Passion Parties, Inc.  The dismissal was requested by the Johnson County, as the case was seen as a waste of county resources.  The federal challenge is being handled by BeAnn Sisemore, who also handled Webb's case. 

UPDATE:  Check out the Dallas Observer's detailed article on Webb's arrest and events leading up to it, as well as a short history of the sex toy industry and related statutes.

Posted by Beth Henderson at 10:26 AM