Читать книгу Texas Confidential - Michael Varhola - Страница 23

SINCE NOVEMBER 2008, PEOPLE IN Texas have had the right to sell or purchase sex toys of various sorts as desired. Prior to that, however, the Lone Star State explicitly reserved the right to regulate morality and to prosecute people who did not measure up to its lofty standards—which it periodically did.

In 1973, even as swingers, wife-swappers, and disco threatened to destroy the moral fiber of the nation, the Texas Legislature passed the Obscene Device Law, a section of the Texas Penal Code that dealt with obscenity. In part, it also prohibited 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.”

Only rarely did prosecutors in Texas presume to enforce the statute but it did happen on a number of significant occasions.

In 2004, Joanne Webb, a former schoolteacher and mother of three, faced up to a year in prison for selling a vibrator to two undercover police officers who infiltrated a private party posing as a married couple.

“It was not a secret in Burleson, a small town near Fort Worth, that Webb sold vibrators, edible creams, and racy lingerie,” CNN reported on the incident. “But not everyone was happy about it…. A few prominent citizens with strong Christian beliefs were angered by Webb and her activities and asked police to investigate.”

A former schoolteacher and mother of three faced up to a year in prison

Webb was ultimately acquitted and the undercover officers were reprimanded for their puritanical fervor.

In 2007, police raided Somethin’ Sexy, a lingerie shop in Lubbock, and confiscated items determined to be illegal under the Texas obscenity law and arrested the clerk working there at the time, who thereafter had to register as a sex offender.

According to the local district attorney’s office, a device met the test for obscenity if someone intended to use it for a sex toy but was okay if they did not.

“If the seller is selling it as a novelty, and the buyer is buying it as a novelty to make fun of, then it probably has not reached the level of an obscenity,” said Assistant District Attorney John Grace, who said a candle was a non-obscene candle if it was promoted for use on a birthday cake, but that the same candle was an obscene sex toy if it was sold for use as a dildo. Based on that thread of logic, purchasing a normal candle and using it as a sex toy would violate the law, while purchasing a vibrator and jamming it on a cake would not. Intent was, in any event, an explicit component of the law.

“A person commits an offense if he … possesses with intent to wholesale promote any obscene material or obscene device,” Section 43.23 of the code stated. “A person who possesses six or more obscene devices … is presumed to possess them with intent to promote the same.” This section specified higher penalties for violators, forcing sellers of items covered under the act usually to market them as “educational items” or “novelties.”

A number of companies that dealt in sexual devices in Texas, operating under the names Dreamer’s, Le Rouge Boutique, and Adam & Eve Inc., responded to the state’s heavy-handed interest in the matter by claiming that the statute was unconstitutional and filing suit accordingly.

On February 12, 2008, a three-judge panel of the Fifth Circuit Court of Appeals, on appeal from the United States District Court for the Western District of Texas, agreed with the sex toy merchants and overturned the statute by a vote of 2–1. This panel maintained that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.”

“Because of Lawrence v. Texas … 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,” the majority opinion stated (see the chapter “Now All Sex is Fine in Texas” for more on this case). “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.”

Texas had presented to the court that it had the right to regulate the morality of its citizens and to discourage “prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The court of appeals, however, was not having it.

On October 29, 2008, the Texas Attorney General’s Office notified the Fifth Circuit Court of Appeals that it would not file a writ of certiorari with the U.S. Supreme Court and was dropping the matter, making it legally safe for sex toy merchants to sell their wares in Texas.