November 2006 Cover
Further Reading
Not For Dykes Alone
Along with other tools meeting simple everyday needs, dildos are at least as old as humanity. Implements...
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Know-nothing high court lets Lone-Star lawmakers gang up on dildo-loving Texans
By
Jim D'Entremont
When the US Supreme Court convened on Monday, October 2nd, to launch its 2006--07 session, the high court refused to hear
Acosta v. Texas, a challenge to a Texas law banning "obscene devices"-- eg, dildos, vibrators, "pocket pussies," and other anatomically
explicit, unambiguous sex toys. Last year the court had similarly denied a hearing to an Alabama sex-toy case,
Williams v. Pryor.
The Texas case dates back to 2003, when Ignacio Sergio Acosta, a salesclerk at El Paso's Trixx Adult Bookstore, showed a vibrator to two undercover officers posing as interested customers. Asked about the product's benefits, Acosta assured a plainclothes policewoman
that the phallic device would give her sexual satisfaction. He was promptly arrested, booked under Chapter 43 of the Texas Penal Code, held in jail for 12 hours, then released on bail pending trial.
A
costa's original trial judge agreed with his attorney's motion to dismiss the case on constitutional grounds, and dropped the charges. The prosecution appealed, however, and won the right to haul the salesclerk back into court.
Acosta, in turn, filed suit against the state of Texas, citing the constitutional privacy principle central to
Lawrence v. Texas, the 2003 Supreme Court decision toppling sodomy laws nationwide. The lawsuit contended that the state's "obscene devices" statute infringes
upon consenting adults' right to pursue a range of sexual activity in private.
"If the US Supreme Court said it's okay for two persons of the same gender to have sex with each other," asked Roger Jon Diamond, Acosta's attorney, in an Associated Press interview, "what's wrong with one person having sex with himself?"
The Eighth District Court of Appeals, however, found the sales prohibition consistent with
Lawrence v. Texas, pointing out that while the Lone Star State prohibits selling or promoting "obscene devices," it does not prevent individuals from owning a limited number of
such devices, or using them in the privacy of their homes. Refusing to accept this interpretation, Acosta and his lawyer brought their appeal to the US Supreme Court, only to be turned down. Acosta now expects to be tried on obscenity charges that could mean a year in prison,
plus fines.
Something nicer for their holsters?
The present Texas obscenity statute has been on the books since 1973, a period of moralistic right-wing reaction to the findings of the 1970 Presidential Commission on Obscenity and Pornography, which concluded that sexually explicit material was not harmful and should
not be proscribed. While censorship receded across the US, some states warily tightened controls.
In Texas, as elsewhere, the law is enforced selectively, and with a large measure of hypocrisy. "I've got police coming in to buy strap-ons for their own use," observes one Texas sex-shop owner.
The Texas Penal Code prohibits making, marketing, and promoting "devices including a dildo or artificial vagina, designed or marked as useful primarily for the stimulation of human genital organs." While the law permits ownership of up to five dildos or other explicit tools
for masturbation, it does prohibit giving such items as gifts. Owning six or more dildos is a felony. "A person who possesses six or more obscene devices," reads the statute, "is presumed to possess them with intent to promote the same."
But the law does permit the distribution and sale of vibrators or massage equipment not specifically designated for sexual use, and sexual devices intended for "a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose." The latter provision
protects prosecutors and judges at proceedings in which sex toys figure as evidence; police who snag six or more dildos in raids; and lawmakers impelled to brandish Jeff Stryker latex specials while railing against them on the floor of the Texas House of Representatives.
"It's asinine," says Bob Houghton, owner of Houston's Black Hawk Leather. "It's an antiquated law. It's one of the stupidest situations imaginable, when the government regulates who can put what where."
The statute's crowning inanity is the semantic veneer that separates legal transactions from criminal acts. Some Texas merchants now ask customers to sign release forms certifying that they know their purchases are intended strictly for educational or therapeutic use. Much
of Houghton's stock is protectively labeled "For Novelty Use Only." If Acosta had described the vibrator to plainclothes detectives as a back massager or even an "anatomically correct condom education model," he would not have been arrested.
"On the other hand," says Kim Airs, who sells sex toys at her website, GrandOpening.com, "since the law just mentions 'stimulation of the genital organs' and doesn't say a thing about the anus, he could legally have told them, 'This is what you shove up your butt!'"
Anal plugs, leather or latex fetishwear, and bondage and discipline paraphernalia are completely legal in George W. Bush's home state-- along with a dizzying array of firearms. The only offbeat merchandise seized in a Texas vice raid within recent memory has been from
the Austin head shop Planet K: cops took the shop's entire supply of plastic inflatable sheep. But the majority of items targeted clearly facilitate female sexual pleasure.
Putting the 'staff' in 'distaff'
In recent years, more women than men have been prosecuted for selling sex toys in the US, especially in Texas. In 2004 alone, former fifth-grade teacher Joanne Webb was arrested in Burleson, Texas, for selling dildos at Tupperware-style home demos for Passion Parties,
Inc.; Nancy McElwee was arrested for retailing vibrators and other sex toys at her lingerie shop, Friends4Ever, near Corpus Christi; and others were warned or harrassed.
Much of the activism aimed at rescinding sex-toy statutes has come from women. In Alabama, the campaign against the existing law is led by sex-shop proprietor Sherri Williams and her female allies. After her arrest, Joanne Webb fought back vigorously in court and won
her case. In 2002, filmmakers Judy Wilder and Laura Barton unveiled
Dildo Diaries, a documentary ridiculing the Texas anti-dildo statute and those who enforce it; the film still circulates.
Lacking a meaningful rationale for curbing "obscene devices," conservative Texas legislators continue to raise the specter of such purported "secondary effects" as prostitution, child molestation, and the spread of AIDS.
In Alabama, an injunction prevents enforcement of the state's 1998 sex-toy law pending the final outcome of
Williams v. Pryor, which is once again picking its way through the lower courts. Laws banning dildos and sex toys have been upheld in Mississippi and Georgia,
and overturned in Colorado, Kansas, and Louisiana. South Carolina considered banning sex toys earlier this year, but the relevant legislation died in committee.
In some states, archaic laws against dildos and other aids to masturbation linger, unenforced and largely forgotten, but potentially retrievable on special occasions. In Massachusetts, for example, an 1857 ordinance banning "articles for self-abuse"-- that is,
masturbation-- remains on the books.
In declining to hear Acosta v. Texas, the Supreme Court did not exactly endorse the Texas "obscene device" statute. But the court, whose conservatism has recently been sharpened by the presence of Bush appointees Samuel Alioto and Chief Justice John Roberts, has
been slowly, steadily receding from the vision of freedom and private, personal choice that produced
Roe v. Wade and later-- perhaps just in the nick of
time-- Lawrence v. Texas.
"The sex-toy issue is portrayed as frivolous, but it's not," says Kim Airs. "It's about women's sexuality, and it's also very much a gay men's issue. The Supreme Court is afraid of making a public statement that using sex toys is okay, because they're afraid of looking like
perverts to their conservative cronies. Their whole stance is very much in line with the Bush Administration.
"There's enormous fear in this culture when it comes down to sex, and it's because sexually empowered women-- sexually empowered people-- are one of the most potent forces at work on this planet. We bring down governments."
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