Judicial Notebook

A federal court in Alabama, relying in part on the expert opinion of a psychologist specializing in human sexuality, recently struck down as unconstitutional a state law that made it a crime to distribute sexual and marital aids such as vibrators and stimulators.

The decision came in a lawsuit filed against Alabama's Attorney General Bill Pryor, by retailers of the items, and by a group of women who said they had personally used sexual devices "either for therapeutic purposes related to sexual dysfunction, or as an alternative to sexual intercourse."

Background on the case

In Williams et al. v. Pryor (41 F. Supp. 2d 1257), the U.S. District Court in Huntsville, citing among other persuasive arguments the proposed testimony of "undisputed expert" Alfred Jack Turner, PhD, the court found that if the law were upheld, "users of these devices will be denied therapy for, among other things, sexual dysfunction."

The law in question, the "Anti-Obscenity Enforcement Act," was enacted in 1989 and amended two years ago by the Alabama legislature. The amended law made it a crime to distribute "any device designed or marketed as primarily useful for the stimulation of human genital organs."

The amendment, aimed at the retail sale of "sexual aids" or "sex toys," made a first offense a misdemeanor, with a fine up to $10,000, one year of imprisonment, or 12 months of hard labor. A second offense was designated a felony with a potential fine of $50,000.

The Alabama law was almost immediately challenged. The plaintiffs sought to enjoin Pryor from enforcing the new law, which they contended would infringe on their fundamental right to privacy and personal autonomy, and did not bear a reasonable relationship to any proper legislative purpose.

Items found not obscene

In its decision last year, the court rejected Alabama's claim that the banned items--penis-shaped dildos, artificial vaginas, vibrators and other stimulators, penis extenders, penis-enlargement pumps, genital rings, anal beads and inflatable dolls--were obscene.

It did so by first defining obscenity as something that appeals to "prurient interest...shameful or morbid interest in nudity, sex or excretion."

According to the decision, most of the items were innocuous, did not appeal to prurient interests, and were not patently offensive. Some of the devices, the court admitted, could have prurient appeal and were even likely to be patently offensive.

"The device that best fits this description is a penis-shaped dildo," said the court in its ruling. "Nevertheless, these dildos and most other devices which may be found to have prurient appeal and to be patently offensive, also have therapeutic, medical value. Thus, these devices are not obscene..."

The court held that the law was "overly broad," bore "no rational relation to a legitimate state interest," and thus violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

In its decision, the court relied heavily on the plaintiffs' contention that sexual aids are often used by "married couples as an aid to marital relations" and frequently have "therapeutic" uses. It noted that many couples used the devices on the suggestion of a therapist to either overcome sexual dysfunction or to enhance marital relationships.

It also cited the proposed testimony of "two undisputed experts in the field of human sexuality" who viewed sexual devices as critical in helping resolve sexual and marital problems.

One of those experts was Turner, a Huntsville psychologist recognized by the court as expert in clinical psychology and human sexuality. He was prepared to testify, the court said, that "sexual aids have provided an appropriate outlet for sexual expression." The court said he often recommends sexual aids to women who have a difficult time achieving orgasm, to older or disabled persons, and to those without a sexual partner or in fear of sexually transmitted diseases.

Thus, said the court, while the law was intended to prohibit obscene items, and some "sexual aids" may in fact be arguably obscene, the Alabama law would also unconstitutionally inhibit access to items which have legitimate therapeutic value for many users.

"Judicial Notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues to encourage involvement by psychologists in judicial decision-making.