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SCOTUS says Texas sex-toy ban is A-OK

No toys for folks in the Lone Star State.

The justices made no comment in rejecting the appeal, which argued that the law violated a constitutional right to sexual privacy. The court last year turned down a similar challenge to an Alabama law.

Texas is one of a handful of states that ban sexual devices. Courts have upheld laws in Georgia, Mississippi, Alabama and Texas and struck down restrictions in Colorado, Kansas and Louisiana. Texas bans the manufacture, sale, distribution and promotion of “devices including a dildo or artificial vagina, designed or marked as useful primarily for the stimulation of human genital organs.”

Ignacio Sergio Acosta, a clerk at Trixx Adult Bookstore in El Paso, was arrested in 2003 for selling a vibrator to two undercover police officers. A state trial judge threw out the case, saying the law was unconstitutional. An appeals court overturned that ruling and said the prosecution could go forward.

So I’m assuming that as long as devices don’t look like human anatomy or are marketed as say, “body massagers,” they will get a pass. In Alabama, the lawmakers there left a gaping loophole exception:

The law allowed the sale of vibrators and body massagers that are not specifically designed or marketed to the public as sexual aids. Sales of sexual devices were exempt if they were to be used ‘for a bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose.’

In South Carolina, one legislator was quite detailed in his proposed ban. Rep. Ralph Davenport of Boiling Springs, SC, submitted H. 4830, which is based upon the premise that selling a sexual device is a violation of obscenity laws. This is a screamer.

(B) For purposes of this article any material is obscene if:

(1) to the average person applying contemporary community standards, the material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (C) of this section;

(2) the average person applying contemporary community standards relating to the depiction or description of sexual conduct would find that the material taken as a whole appeals to the prurient interest in sex;

(3) to a reasonable person, the material taken as a whole lacks serious literary, artistic, political, or scientific value; and

(4) the material as used is not otherwise protected or privileged under the Constitutions of the United States or of this State.

(C) As used in this article:

(1) ‘sexual conduct’ means:

(a) vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted, whether between human beings, animals, or a combination thereof;

(b) masturbation, excretory functions, or lewd exhibition, actual or simulated, of the genitals, pubic hair, anus, vulva, or female breast nipples including male or female genitals in a state of sexual stimulation or arousal or covered male genitals in a discernably turgid state;

(c) an act or condition that depicts actual or simulated bestiality, sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or the condition of being fettered, bound, or otherwise physically restrained on the part of the one so clothed;

(d) an act or condition that depicts actual or simulated touching, caressing, or fondling of, or other similar physical contact with, the covered or exposed genitals, pubic or anal regions, or female breast nipple, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of actual or apparent sexual stimulation or gratification; or

(e) an act or condition that depicts the insertion of any part of a person’s body, other than the male sexual organ, or of any an object into another person’s anus or vagina, except when done as part of a recognized medical procedure.

(2) ‘patently offensive’ means obviously and clearly disagreeable, objectionable, repugnant, displeasing, distasteful, or obnoxious to contemporary standards of decency and propriety within the community.

(3) ‘prurient interest’ means a shameful or morbid interest in nudity, sex, or excretion and is reflective of an arousal of lewd and lascivious desires and thoughts.

(4) ‘person’ means any individual, corporation, partnership, association, firm, club, or other legal or commercial entity.

(5) ‘knowingly’ means having general knowledge of the content of the subject material or performance, or failing after reasonable opportunity to exercise reasonable inspection which would have disclosed the character of the material or performance.

(D) Obscenity must be judged with reference to ordinary adults except that it must be judged with reference to children or other especially susceptible audiences or clearly defined deviant sexual groups if it appears from the character of the material or the circumstances of its dissemination to be especially for or directed to children or such these audiences or groups.

(E) As used in this article, ‘community standards’ used in determining prurient appeal and patent offensiveness are the standards of the area from which the jury is drawn.

(F) It is unlawful for any a person knowingly to create, buy, procure, or process obscene material or a sexual device with the purpose and intent of disseminating it.

(G) It is unlawful for a person to advertise or otherwise promote the sale of sexual devices or material represented or held out by them as obscene.

(H) A person who violates this section is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than ten thousand dollars, or both.

(I) Obscene material and sexual devices disseminated, procured, or promoted in violation of this section is contraband and may be seized by appropriate law enforcement authorities.”

Davenport must have a lot of time on his hands, thinking about the people’s bedroom business.

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Pam Spaulding

Pam Spaulding