Ignacio Acosta, an employee at an adult bookstore in El Paso, Texas, was arrested for violating the law after he allegedly showed a penis-shaped sex toy to two undercover officers. According to a police report, Acosta allegedly told a female officer that the sex toy would arouse and gratify her.
Acosta challenged his arrest, arguing that the law was unconstitutional because it prevents individuals from using the sex toys in violation of their sexual privacy.
An El Paso County court agreed with Acosta, granting his motion to dismiss the criminal charges. But a state appeals court reversed the lower court’s ruling and reinstated the charges.
Acosta’s lawyer, Santa Monica, Calif.-based Roger Diamond, urged the U.S. Supreme Court to hear the case in light of conflicting rulings throughout the nation as to the sale of so-called obscene sex toys.
Colorado, Kansas and Louisiana courts have all weighed in saying that laws banning the sale of sex toys on obscenity grounds are unconstitutional.
Courts in Georgia, Mississippi and Texas have upheld sex toy bans.
“It’s kind of a stupid law,” Diamond told XBIZ. “We’re using this case as a kind of test case to challenge the constitutional issue.”
According to Diamond, retailers in states employing sex toy bans technically may be in violation of those laws, although he said many retailers protect themselves by saying the toys are for sold for artistic, medical or education use, thus raising possible defenses to the statutes.
The Texas law exempts sex toys sold for medical or educational purposes, Diamond said, but, in this case, Acosta was honest in his comments to the undercover officer when he told her what the device was intended to be used for. Many retailers sell their products and protect themselves from sex toy bans by using pretext, Diamond added.
The case will now go to the El Paso County court for trial.
Diamond said he was confident that Acosta would likely prevail at trial, although that would ironically extinguish the constitutional challenge.
The case is Ignacio Sergio Acosta vs. state of Texas, 05-1574.
