Adult shops 'excited' by change in sex toy law

By RYAN MYERS, The Enterprise
02/15/2008
Updated 02/16/2008 11:01:31 PM CST


The variety of sex toys available in Beaumont could blossom following an appellate court's decision to overturn a rarely enforced 35-year-old state law that banned promotion and sale of the devices.

"I am very excited," Katrina Faggard, owner of Krazy Katz in the 8300 block of College Street, said by telephone Thursday. "But I guess we'll have to talk to a lawyer before we decide how this will affect our inventory."

Faggard was one of nine people arrested in October 2006 when Beaumont police raided three shops carrying adult materials. Officers seized merchandise and charged employees with misdemeanor violations of the state's obscenity laws.

In existing Texas law, devices used primarily for sexual stimulation are illegal to sell, advertise or promote. Possession of more than five sexual devices is considered promotion.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Wednesday the law violates 14th Amendment privacy protections.

"... (T)he state here wants to use its law to enforce a public moral code by restricting private intimate conduct," the judges wrote in the 2-1 ruling. "Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution."

Attorneys for the state of Texas could ask for a review of the case by the entire court or appeal to the U.S. Supreme Court.

Otherwise, Wednesday's decision will not go into effect until a lower court formally adopts the finding.

The decision does leave room for restrictions on how the devices can be sold.

"Nothing here said or held protects the public display of material that is obscene as defined by the Supreme Court," the opinion notes. " ... Advertisements of the devices could be prohibited if they are obscene."

Jefferson County District Attorney Tom Maness said Wednesday's ruling likely would stop future enforcement of the state's laws against sex toy promotion and sale.

Faggard and Marilyn Cupak, owner of Bare Necessities, said inventory reductions to prevent further arrests hurt business.

"It affected our cross-over sales," said Cupak, who also was unsure how the court ruling would affect inventory at her adult lingerie shop in the 2500 block of Interstate 10. "Someone who bought that type of item might also buy a lingerie piece, maybe, or massage oil."

Because the sex toy ban rarely was enforced, Cupak said, customers easily could travel to other shops in Southeast Texas to find what they could not purchase in Beaumont.

Beaumont police and the Beaumont city attorney's office did not return repeated calls for comment Thursday. In October 2006, police said the raids were the result of a complaint.

Of cases filed on the nine people arrested, most were dismissed or resulted in fines. Faggard, whose case still is pending, said she hopes the ruling will result in prosecutors dismissing the charge against her.

"We have not crossed that bridge yet," Maness said of how his office will handle pending prosecutions. "But in all likelihood, all prosecution will be dismissed based on that case."

Mississippi, Alabama and Virginia have sex toy statutes similar to the one in Texas. Courts have thrown out comparable laws in Louisiana, Kansas, Colorado and Georgia.

Customers, already more plentiful on account of Valentine's Day, flocked to Krazy Kats on Thursday, Faggard said.

Disregarding limitations that might be imposed in the future, Faggard reacted to the ruling with a sense of vindication.

"I had never been in trouble before in my life - try explaining that to your dad," she said. "In my opinion, there was nothing at all wrong with the merchandise they took from us. If anything, it makes people smile. It doesn't hurt people."





Updated 02/16/2008 11:01:31 PM CST

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