Can't buy a thrill: substantive due process, equal protection, and criminalizing sex toys.

• Author: Glover, Richard

1. INTRODUCTION

   It's the day for civic freebies as a number of businesses in New York City and across the country offer giveaways to voters who have cast their ballots. Starbucks is giving away free cups of coffee, Ben and Jerry's will give away free scoops of ice cream ... and Krispy Kreme is giving away star-shaped donuts with patriot sprinkles.... Elsewhere, a more unusual giveaway ... has drawn a lot of attention. (1) On Election Day, November 4, 2008, Babeland, a sex toy retail chain, rewarded voters in New York, Los Angeles, and Seattle with free devices. (2) For men, there was the "Maverick," "always there to lend a hand," and ready to "buck[] the status quo"; (3) for women, there was the "Silver Bullet," because "what our country needs right now [is] a magical solution ..., a great stress-reliever during these troubled economic times." (4) The response was overwhelming. (5) Babeland was inundated with requests to the point that the company had to hire additional staff and ran low on supplies. (6) One possible explanation for the outstanding success of the promotion is summed up in the assertion that "[s]ex crosses party lines." (7) It does not, however, appear to cross state lines.

   Alabama, Mississippi, and Virginia presently criminalize the marketing and sale of sexual devices--objects created primarily to stimulate human genitals. The Alabama and Mississippi statutes have withstood legal challenges in the Eleventh Circuit. The Virginia statute has not yet been challenged. Texas has a similar ban, but in early 2008, the Fifth Circuit Court of Appeals declared the statute an unconstitutional burden on the people's substantive due process right to sexual autonomy.

   This Comment explores the split between the Fifth and Eleventh Circuits on the issue of sexual privacy and statutes that ban the sale and distribution of sexual devices. Through a discussion centered around Lawrence v. Texas, the Comment argues that the statutes, although perhaps silly or repugnant, are not unconstitutional as a matter of privacy, substantive due process liberty, equal protection, nor First Amendment sexual expression. In fact, a finding of unconstitutionality could potentially do more harm than good to the greater goals of understanding female sexuality and providing sexual realization and autonomy. Those goals will be best served, as they have been thus far, via legislative means and further scientific research into the role and nature of sex and orgasm in modern relationships. Part II provides a background discussion of the history of sexual devices, specifically vibrators, (8) and the laws that criminalize their sale in some states. Part III discusses the case history and decisions of the Fifth and Eleventh Circuits in Reliable Consultants, Inc. v. Earle (9) and Williams v. King, (10) respectively. Part IV provides background to the constitutional challenges, discussion of the existing and potential academic criticisms of the Eleventh Circuit's decision, and analysis of those criticisms. Part V contains concluding remarks.

2. BACKGROUND AND HISTORY

   1. HYSTERIA, MASSAGE, & VIBRATORS

      Derived from a Greek word meaning "womb," (11) "hysteria" as a diagnosis dates back to as early as 2000 B.C.E., and documented treatment by "vulvular massage" dates to at least the first century C.E. (12) Symptoms of hysteria, described in the seventeenth century as "the most common of all diseases except fevers," (13) include anxiety, sleeplessness, irritability, erotic fantasy, and vaginal lubrication--a set of symptoms some call "chronic arousal." (14) Vulvular massage would temporarily treat hysterical women by leading to paroxysms, or sudden outbursts of emotion or action. (15) Hysterical paroxysms are characterized by, among other things, "local spasms," loss of consciousness, flushing of the skin, "voluptuous sensations," embarrassment, confusion, and a very brief loss of control; in short, paroxyms are orgasms. (16)

      Because "hysterical" women were not achieving orgasm by penetration and masturbation was strictly proscribed, medical treatment was necessary. (17) Furthermore, because it was a treatment rather than a cure, the task of vulvular massage had to be regularly repeated. Physicians found the treatment to be an inconvenient, routine, and difficult-to-learn chore, (18) often leading them to relegate the labor to husbands and midwives. (19) That the business was lucrative, regular, and repeat, but also annoying, provided ample incentive for inventive minds. (20) In the 1880s, Dr. Joseph Mortimer Granville developed and patented the electromechanical vibrator, (21) revolutionizing treatment of hysteria. (22)

      By 1952, the American Psychiatric Association officially removed hysteria and other related disorders from the list of accepted diagnoses. (23) The vibrator, however, fell from grace almost three decades earlier. (24) Prior to the late 1920s, the vibrator held an odd social position, a welcomed medical innovation separate from similar but more risky technologies like the speculum. (25) A confluence of amenable social, medical, and psychological theories in that era cast the vibrator in an artificially reputable light. (26) Dominant androcentrism (27) implied that "what pleases men sexually pleases women generally." (28) Women incapable of achieving strictly vaginal orgasms (by most accounts, a majority) (29) were in need of therapy. (30) Profound lack of understanding, both physiological and psychological, of female sexuality led to confusion about the role of female sex organs and the function, if any, of female orgasm. (31) Much of this confusion continues to this day. (32) Androcentrism "created" hysterical women, and their "treatment" through massage rather than penetration was viewed as clinical rather than sexual. (33) The only real hurdle for the vibrator to clear en route to routine acceptance was the concern that massage without the assistance of a physician would lead to "compulsive masturbation, nymphomania, or an outright rejection of intercourse." (34) The advantages of cost and convenience would quickly overcome such objections. (35)

      Before the late 1920s, advertisements for vibrators, marketed to both women and their husbands, appeared in publications as commonplace as Home Needlework Magazine, Hearst's, Popular Mechanics, McClure's, and Sears and Roebuck. (36) Advertisements made claims of prolonging youth, health, and beauty, one of the most explicit claiming that "[a]ll the keen relish, the pleasures of youth, will throb within you." (37) Vibrators were marketed as regular household appliances; indeed, the only mechanical census that mentions their sales specifically classifies them with curling irons and hair driers. (38) Vibrators were one of the first five appliances to be electrified, possibly reflecting consumer interest and priority. (39) However, social, medical, and psychological paradigm shifts quickly spelled the end of the vibrator in the public sphere.

      In the late 1920s, the vibrator began appearing in pornographic films as a masturbatory device, exposing it as a threat to the androcentric model. (40) At the same time, Freud's psychoanalytic theories of "mature" (vaginal) versus "immature" (clitoral) female sexuality, originally penned in 1905, had become developed and dominant. (41) Freud's account both entrenched the androcentric model and exposed the problem vibrators posed to it. These events corresponded with the growing awareness in the medical community that hysteria was so overbroad as a category as to be a meaningless diagnosis. (42)

      By 1930, the vibrator had disappeared from commercial catalogues entirely. It remained underground until its resurgence as a non-medical device in 1960s catalogues. (43) Since then, the "adult novelty" market has ballooned into a $1.5 billion industry. (44) In the meantime, second wave feminism had begun to dismantle Freudian androcentrism and opened the door for clitoral orgasm to re-enter healthy relationships. (45) However, the debate over the role and importance of female orgasm in modern relationships certainly has not been won, (46) as evidenced by the recent and continued attempts by certain state legislatures to regulate the means by which women achieve climax. (47) The early twentieth-century association of the vibrator with pornography brought about its temporary demise. Yet, removing it from respectable roles and relegating it to seedy sex shops also sheltered it from explicit state sanction. Ironically, the vibrator's late-twentieth-century revival, which brought it out from backrooms and basements and into national retailers and well-known boutiques, (48) has hastened its prohibition.

   2. STATE REGULATION OF SEXUAL DEVICES

      The 1980s and '90s saw several states enact laws prohibiting the distribution of sexual devices. Though as many as eight states once had statutes banning sales, (49) at present the number of undisputed statutes has dwindled to three. (50) The stories emerging from the states with invalidated laws are relatively consistent: the invalidity of each law stems from constitutional technicalities, while the underlying ability to regulate the sale of these devices is either never addressed or simply presumed to exist. (51)

      The Colorado statute, for example, contained a blanket proscription of all sexual devices. (52) The Colorado Supreme Court held that, because it lacked a medical exception, the statute infringed the privacy right of those seeking "legitimate" use. (53) The Kansas statute also failed to create a medical exception, again leading to invalidation on privacy grounds. (54) In a related but distinct analysis, the Louisiana Supreme Court found that because the Louisiana statute contained no medical exception, it failed rational basis review. (55) The Georgia statute contained a blanket ban on advertising despite providing a medical exception for sale. (56) The state's supreme court held that because this amounted to...