The following blog is meant for a mature audience as it contains sexual content that is not meant for minors.
If you are under the age of 18, or if you are faint of heart, then read no further and instead enjoy some of our other content. Reader discretion is advised.
Criminal Prosecution for Obscenity
Under Texas Law, a person commits an offense if, knowing its content and character, he promotes, or possesses with intent to promote, any obscene material or obscene device.
-See Tex. Pen. Code § 43.23(c)(1)
Today’s discussion will be limited to the obscene device. Now, your obvious question is, “What constitutes an ‘obscene device?’” Well, luckily for you, your elected legislators have taken the time to define that term in what must have been a red-cheeked legislative session.
An Obscene Device is defined as, “a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.”
-See Tex. Pen. Code § 43.21(a)(7)
Another important definition is that for “Promote” because it seems to be quite broad. Promote means to “manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.”
-See Tex. Pen. Code § 43.21(a)(5)
Presumption of Intent to Promote
When criminal law creates a presumption of criminal intent, it creates quite a slippery slope since it allows that presumption to stand with no other proof. Texas law creates such a presumption and establishes a criminal intent for mere possession of these devices.
“A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote them.”
—See Tex. Pen. Code § 43.23(f)
Violation of these statutes is punishable as a Class A Misdemeanor. A person adjudicated guilty for such shall be punished with a fine not to exceed $4,000.00, confinement in jail for up to one year, or both fine and confinement. However, someone who is found to be a wholesale promoter can be punished for a State Jail Felony.
—See Tex. Pen. Code § 43.23(d)
Why This Matters to You
This should matter to you because it isn’t some old timey law that is still on the books, because it has been prosecuted in Texas as early as 2008 in, Villarreal v. State, 267 S.W.3d 204, where the lady was fined $1,500 and sentenced to one year in jail.
You likely didn’t even realize that simply possessing such items, or giving them as a gift, could carry such criminal penalties, did you? How many other laws do you think exist that you just don’t know about that can lead to prosecution and such public humiliation?
Even though you might think you have nothing to hide, you may have to think again when the Officer asks if he can have a look around, or else you may end up explaining your most intimate preferences to a jury of your peers.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Criminal Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479