An El Paso, Texas, judge on Monday ruled the state’s ban on the sale of “obscene devices” unconstitutional, unconditionally freeing a man who had faced jail time since his arrest in September, 2003.
Sergio Acosta, an Adult bookstore manager, had been arrested and charged last year with obscenity by the El Paso police department as part of a campaign directed against sexually oriented businesses. The charge carries potential penalties of one year in jail and a $4,000 fine.
The judge, Alma Trejo, dismissed all charges against Acosta, without commenting further on the basis for her ruling. Marcos Lizarraga, an El Paso assistant district attorney, was quoted as telling the El Paso Times that the ruling would be appealed: “We are going to appeal it because the statute is in the books … It is illegal to sell or purchase [obscene devices],” he said.
Acosta’s attorney, Roger Jon Diamond of Santa Monica, CA, said the Texas statute defines an “obscene device” as “a dildo or artificial vagina designed or marketed as useful primarily for the stimulation of human genital organs.”
According to the El Paso Times article, Diamond said: “The principal argument is that sexual privacy is part of the liberty of the due process clause of the 14th Amendment. In other words, there are certain things you can do in private that the government has no right to impose on.”
Similar charges against Joann Webb, a woman who was arrested in Burleson, Texas for selling undercover officers two dildos, were dismissed in July after the District Attorney decided the case was a “waste of resources.”
A federal lawsuit challenging the constitutionality of the relevant law has been filed by eight women, including Webb, who are consultants for Passion Parties, a home party company that is billed as an Adult version of Tupperware.
Last week the owner of a general video store in Louisiana and one of his clerks were arrested for selling adult novelties out a back room.
Other states with laws banning sex toys include Alabama and Georgia.
