Looking for a court challenge to obscenity laws? Try Oregon, where the laws regarding exposing minors to obscenity are already so broad as to be hard to fit within the bounds of the constitution. How bad are the current laws? Currently, ORS Chapter 167, subsection 167.080, reads as follows:
(1) A person commits the crime of displaying obscene materials to minors if, being the owner, operator or manager of a business or acting in a managerial capacity, the person knowingly or recklessly permits a minor who is not accompanied by the parent or lawful guardian of the minor to enter or remain on the premises, if in that part of the premises where the minor is so permitted to be, there is visibly displayed:
- (a) Any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse; or
- (b) Any book, magazine, paperback, pamphlet or other written or printed matter, however reproduced, that reveals a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse.
(2) Displaying obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000.
Woodhull’s General Counsel, Lawrence Walters explains that criminalizing displays of nudity are problematic. According to Walters:
Nudity, on its own, cannot be deemed automatically harmful or obscene – even as to minors – without proving that the work is patently offensive, appeals to prurient interest (based on community standards) and lacks serious literary, artistic, political or scientific value, with respect to minors. If nudity could be categorically prohibited, public art museums could not display a Venus De Milo sculpture, or a painting of Adam & Eve. Moreover, if nudity were considered illegal for minors, most sex education books would become illegal, as would books about breast cancer or circumcision.
Oregon’s laws allow for affirmative defense if the person in question can show that they the owners or employees of a “bona fide school, museum or public library” or it’s gift shop, but that still leaves major retail outlets like Barnes and Noble or Target out in the cold.
Now, Oregon legislators want to go further, changing “displaying” to “making available,” and adding a paragraph “c” explicitly prohibiting the sale of sex toys to unaccompanied minors. From HB 3365 (tracking, text):
(C) Any instrument or device, other than one primarily intended for a medical purpose including contraception, that is specifically designed to sexually stimulate a person’s genital or anal areas as part of an act of sexual conduct; or (b) Purchase from the business any instrument or device, other than one primarily intended for a medical purpose including contraception, that is specifically designed to sexually stimulate a person’s genital or anal areas as part of an act of sexual conduct.
Walters points out that “The prohibition on display of sex toys adds further confusion, given the difficulty in defining whether a particular device is designed to stimulate the genitals. Some of these sexual device laws have been struck down in other states. Every so often we see these patently unconstitutional bills floated in state legislatures. Usually they are shut down before they become law, but occasionally they must be challenged and invalidated by the courts.”
Note that it’s fine to show or sell a sex toy to a minor if that minor’s parent or guardian is present. While it would be nice to imagine that many teens could talk openly with their parents or guardians about the acquisition of vibrators or dildos or butt plugs or any other such stimulating items, many can’t. And seriously, shouldn’t a fifteen or sixteen-year-old be able to shop for her first dildo with her girlfriends, instead of with her mom, if she wants to?
I can imagine that the managers of chain drug stores and big box stores like Target aren’t happy about this legislation either. Think about all the staff they’d need on the floor if they were going to keep unaccompanied minors out of the health and beauty section where the Fifty Shades of mainstreamed blindfolds and handcuffs and floggers were prominently displayed. And maybe that’s the point of the legislation: making it difficult to mainstream the sale of sex toys for all of us by keeping them segregated behind the doors of adult-only sex shops.
I hope this bill is “shut down” before it can be come law. It’s an excellent example of the kind of law that claims to protect young people but really does far more harm than good. You’d think, given the wide support across the political spectrum for such eminently sensible goals as reducing teen pregnancy, reducing rates of STIs, and building self-esteem among young people, that encouraging self-exploration and self-pleasuring would be high on people’s agendas for teen sex education. Of course Joycelyn Elders deigned to suggest this when she was Surgeon General more than 20 years ago, and she was forced to resign as a result.
My Oregonian friends assure me that the legislature out there has its radical conservatives, just like anywhere, and that bills like this are unlikely to succeed. One friend told me about a bill to ban baby seats from bikes, and suggested that this will fail just as that one had. My fear, of course, is that it’s a lot easier to stand up and say “Hey, I bike with my baby,” than it is to stand up and say “Hey, I think it’s fine if my teenage daughter wants to go buy a vibrator.” Anything that connects sex with youth in a positive way is easy to stigmatize, and that stigma may just be what a bill like this needs to squeak through the legislative process.
Maybe it’s time to start a “Toys for Teens” campaign!
The legislators who are sponsoring this bill are:
If you live in Oregon, feel free to let them know what you think!
UPDATE, April 11 2015, 2:40 pm: Larry Walters, our General Counsel, pointed out to me that , where it concerns adults, obscenity is protected under Oregon law as a result of an Oregon Supreme Court decision in State v. Henry, 1987.