[Ed. note: For this question, I turned it over to my legal expert, Davis from Sexquire.]
As a fellow New Yorker and former sex shop clerk, I’m hoping you can shed some light on this subject. I’m a clerk at a sex shop in the Finger Lakes of New York, and I love the job – I’ve been a sex educator for seven years and love helping people pick out safe, well-designed sexy things. My boss, however, asks that clerks not give directions as to how to use the products in our store (we actually direct them to the store copy of your Big Book of Sex Toys). But I can’t help myself! Sex ed is in my blood! Sex toys are not intuitive to people who have never seen one before! My boss says this is a legal issue: because the products are “novelties,” we can’t come right out and say what they’re for. In Jessica Valenti’s book, The Purity Myth, she points to a case in Texas about a “Passion Party” saleswoman who faced obscenity charges for explaining how to use a vibrator. That scared the crap out of me. Do you know what the deal is with obscenity laws and sex toys? Is it really a legal risk for a clerk to talk about this stuff? Is it only a risk in certain states? Any response will be very much appreciated!
– Concerned Shopkeep
Let’s start with the technical legal part of your question, and then get to what it means for clerks like you.
The saleswoman Valenti speaks of, Joanne Webb, was initially charged, but once the case received attention, the Johnson County prosecutor dropped the charges, and later, in an unrelated case, the law under which she was charged was struck down as unconstitutional by the U.S. Court of Appeals for the Fifth Circuit. (The United States federal court system is divided into 13 U.S. Circuit Courts of Appeal by geographic location, so when the Fifth Circuit struck down the Texas law, it had the effect of also invalidating a similar law in Mississippi though that law had not yet been directly challenged).
Most legal scholars felt that this case, coupled with the Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003) (which struck down a Texas law prohibiting sodomy between consenting adults in their own home) signaled the eventual end of laws regulating sex/sex toys and consenting adults. However, the U.S. Court of Appeals for the Eleventh Circuit later upheld a similar Alabama law that criminalized the sale of sex toys. The court cited the fact that the Alabama law regulated only commercial activity – the sale of sexual aids, and not their use (unlike the more broad-based Texas law) in its justification for reaching a different result than the previous Fifth Circuit decision.
So what does all of this litigation mean to sex shop clerks? First, unless you are in Alabama, you have no reason to fear being arrested on obscenity charges for providing sex education about or selling these products as other than novelties. Second, if it is customer litigation that your boss fears, they should know that although some sex toy manufacturers apply a “FOR NOVELTY USE ONLY” label to sex toys in an attempt to circumvent potential injury claims from consumers, there has never been a reported case of this being a successful defense against such a claim. In fact there has not, to my knowledge, ever been a reported case of a consumer suing for damage caused by a sex toy, likely due not to the lack of such injuries but more to the social stigma and publicity such a case would cause for the potential plaintiff. And finally, and perhaps most importantly for you, know that New York is an at-will employment state, so despite your being technically right, your boss can legally fire you for any or no reason, just not an illegal reason, and sex educators are not a protected class. So, proceed forward with your new knowledge with caution, and feel free to refer any further questions your boss might have to me!
Davis is the founder of Sexquire, a complete sex-positive business services company. Davis is the legal arm of Sexquire, having advised brick and mortar sex toy stores, sex educators, sex workers and other sex positive business folk on all manner of legal issues for over 7 years. In addition to legal matters, Sexquire also provides bookkeeping, accounting, personal assistance and other business services all with a sex-positive spin. You can find them online at their website, as well as Twitter and Facebook.