Court orders Customs to return sex doll

A HIGH COURT judge has ruled that the seizure of a sex doll, imported in December 2018 by an e-commerce consultant, was unlawful.

Justice Ricky Rahim on Thursday also held that the policy of the Customs and Excise Division to impose the restriction for the importation of an adult sex toy that closely resembles the male or female genitals was “arbitrary.”

He said it was for a court to determine if the item was indecent or obscene and ordered Customs to return the doll to the man after he pays a $5,000 security bond to ensure the man produces the doll for trial at the Arima Magistrates’ Court.

The judge’s findings were contained in his ruling in favor of the Chaguanas man who challenged the Comptroller of Customs’ decision to seize his sex doll.

When the doll arrived in TT he was told it was considered to be in breach of section 45 (1) (L) of the Customs Act Chapter 78:01. He reportedly told customs officers the doll was for photographic purposes.

He said a notice of seizure was issued to him pursuant to section 220 of the Customs Act, which said the item was seized because it was deemed to be a prohibited item “namely an indecent/obscene article” contrary to section 45 (1) of the Act.

The law, Chapter 78:01, Section 45 (l) of the Customs Act, state, however, among other things, it is prohibited to import “indecent or obscene prints, paintings, and photographs, books cards, lithographic and other engravings, gramophone records or any other indecent or obscene articles or matter.

The consultant is represented by attorneys Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan.

“The adherence to an arbitrary policy that mandates that the goods are indecent or obscene because they fall into an undefined category of items and closely resemble genitals is in the court’s view unlawful as it removes the independence of the assessment of the officer in relation to both the objective and subjective elements of the exercise of the power,” the judge said.

Rahim also held that the policy was “vague.”

He also questioned whether the definition set out in the policy was overly restrictive. “The natural and ordinary meaning of the word obscene is offensive or disgusting by accepted standards of morality and decency and repugnant.

“This definition admits of, and is directly related to, applicable societal standards of that which is moral, decent and acceptable,’ he said.

He said to classify an item as obscene by the simple fact that it closely resembles the male or female genitals would be to ignore the other elements of the definition unrelated to the description of the item.

“These other elements may be the prevailing accepted norms of society at the time or the accepted morality of TT society,” he said.

He also added there was a jurisprudential argument that morals, and that which are accepted by society, changes as society itself changes.

Rahim referred to the acceptance of same-sex relationships locally.

“Quite recently in this jurisdiction, there has been an acceptance of same-sex relationships, a relationship which would have been considered immoral by many in the past and which some still consider to be so.

“Similarly, the practice of smoking less than 30 grammes of cannabis in private has been decriminalised in this territory quite recently. This again is a matter that may have been considered immoral or certainly unacceptable by this society in the past.

“So that it is reasonable to presume that a feature of all developing societies is that accepted standards of decency and morals change over time.

“It follows therefore that what may be seen to have been indecent, immoral or unacceptable or repugnant decades ago may not necessarily be so considered today. “

According to the judge, the definition of indecent or obscene under the Customs Act was “coloured by the date and time” in which the section was used “and that this is so by design and not by coincidence in a recognition by the legislature that standards or morality and that which is acceptable are not stoic but are in fact dynamic features of societal existence.”

He said a customs officer’s consideration of whether the item may be prohibited as being obscene or indecent “may ignore societal norms and acceptable standards of morality thereby being unduly restrictive and artificial.

“The application of the section in such a manner would be repugnant to the legislation and would be unlawful,” he added.

Rahim said while a public authority was entitled to issue or change a policy under which it operates, to be lawful and effectual it must be rational and made in full view of the public by way of notification.

“Transparency in the promulgation of the policy is therefore fundamental to the rule of law, he said, adding that there must also be conformity with applicable law.

Attorneys representing the man intend to make an application at the magistrates’ court to have the charge of contravention of the Customs Act dismissed.

The comptroller of customs was represented by Senior Counsel Gilbert Peterson and Josefina Baptiste-Mohammed.