ACLU challenges Alabama ban on use of sex devices and “marital aids”

July 29, 1998

MADISON COUNTY, AL -- Acting on behalf of six individuals, the American Civil Liberties Union of Alabama today filed a challenge to a state law banning the purchase of sexual stimulation devices.

Under penalties of up to $10,000 in fines, one year’s jail time or “hard labor,” the law prohibits as obscene the sale, production or distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” The law, passed by the legislature in April, went into effect on July 1. The principal sponsor of the law is Sen. Tom Butler of Madison.

In a complaint filed today in federal district court, the ACLU pointed out that neither masturbation nor genital stimulation is a crime in Alabama, and that many of the banned devices are recommended by doctors who treat sexual dysfunction.

Because a great number of Alabama residents face serious legal consequences, the ACLU is asking the court to immediately block enforcement of the law. The complaint names as defendants Bill Pryor, Alabama attorney general, and Tim Morgan, district attorney for Madison County -- the two officials responsible for prosecuting violations of the law in Madison County.

"If a doctor recommends the use of a vibrator or sex aid to assist an individual or a couple in improving their sex lives, I don't see where the government has an interest in preventing them from following that advice," said Olivia Turner, executive director of the ACLU of Alabama. Even the Food and Drug Administration has said such devices are medically necessary, she added.

In a declaration supporting the ACLU's claims, psychologist Dr. Alfred Jack Turner of Huntsville said he often recommends the use of "sexual/marital aids such as vibrators" to assist his patients in "overcoming sexual dysfunction and other problems."

Dr. Pepper Schwartz, a professor of sociology at the University of Washington at Seattle and a renowned expert on sexual intimacy issues, also submitted a declaration in the case.

"Research and clinical evidence shows that many women who had given up hope of having an orgasm were able to become orgasmic once a vibrator was recommended," she said. "They are now able to enjoy fuller, more enriched sex lives."

In its complaint, the ACLU notes that Alabama law does not prohibit the sale of books such as Sex for One and The Kinsey Institute New Report on Sex at the local Barnes & Noble, and that vibrators marketed as "body massagers" can be purchased in Wal-Mart stores and at the local mall.

"This case is about government imposing its version of morality on private citizens," said ACLU National Staff Attorney Mark J. Lopez, who is lead counsel in the case. "But it's clear to us that many people don't share the government's point of view."

Lopez said that two of the women represented in the case, Sherri Williams and B.J. Bailey, could be subject to arrest and fines because they run businesses that could be shut down under the law.

Williams owns two retail stores in Huntsville and Decatur, both called Pleasures, that sell sexual aids and novelties. B.J. Bailey, an Alabama resident, conducts Tupperware-style parties in private homes, where she sells her company's Saucy Lady products, many of which would be illegal under the law. Bailey estimates that tens of thousands of women in northern Alabama have attended her gatherings. Both Williams and Bailey have joined the case on behalf of their customers.

"By prohibiting the sale and distribution of sexual devices, Alabama has unduly burdened the rights of plaintiffs to be free from unwarranted governmental intrusions into their private practices," the ACLU's complaint asserts. Such action violates the fundamental rights of privacy and personal autonomy guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution.

The case is Sherri Williams, B.J. Bailey et al. v. Bill Pryor and Tim Morgan, filed in United States District Court for the Northern District of Alabama. Attorneys in the case are Mark J. Lopez of the National ACLU, and Amy L. Herring of Harris & Herring and Michael L. Fees of Watson, Fees & Jimmerson, both of Huntsville and acting as ACLU of Alabama cooperating attorneys.

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