The U.S. Supreme Court began its term today by refusing to consider the constitutionality of a Texas law making it a crime to promote objects shaped like sexual organs. The case involves an adult bookstore employee from El Paso (natch) who was arrested after he showed undercover officers a dildo and told the female office its use would gratify her sexually. Though an El Paso County court threw out the criminal complaint, it was reinstated by an appeals court. Different state supreme courts have come to different conclusions as to whether such state laws are constitutional, and our U.S. Supreme Court decided to keep its hands off this messy area of law.


For those playing at home, the statute in question is part of Chapter 43, Penal Code, entitled “Public Indecency.” The first part of that chapter deals with prostitution (which is illegal in Texas, incidentally). Subchapter B deals with obscenity. An “obscene device” is defined as “a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” Since the adult bookstore was likely a retail business, the promotion or possesion “with intent to promote any obscene material or obscene device” is a Class A misdemeanor. Unless you promote it to a minor, in which case it’s a felony. I’ll presume that the undercover cops weren’t minors, so the punishment is merely a maximum fine of $4,000 or a year in jail, or both.
Ignorance is no excuse. The promotion of an obscene device as part of the course of business is presumed to show knowledge of the device’s “content and character.” Suppose it’s not part of the ordinary course of business, then you’d better not have six or more identical or similar devices in your possession, because then it is presumed that you possess them with the intent to promote them. And if you promote them as a wholesaler, well, that’s a felony, too. The good news is, it’s an affirmative defense if you promote or possess an obscene device for a “bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose,” like education (Section 43.23, Penal Code).
So, remember, when you’re shopping for a dildo in Texas, be sure to ask for the educational model. Otherwise, you just might be causing someone to commit a crime just to make you a satisfied customer. And the next time you’re in El Paso, ask the police chief if his officers have anything better to do than shop for dildos undercover. If you want to learn more about this law and other related prohibitions, check out the documentary Dildo Diaries, a hilarious look at the world of sex toys and the laws we pass to protect an obviously embarrassed and impressionable society from them.

Potentially related posts: