Judge: Policy on importing sex toys is unlawful

WHAT may be seen to have been indecent, immoral or unacceptable or repugnant decades ago may not necessarily be so considered today, a High Court judge has ruled.

Justice Ricky Rahim quashed a decision by the Comptroller of Customs to implement a policy on the importation of adult sex toys.

He held that the policy of imposing a restriction on importing adult sex toys that closely resemble the male or female genitals was irrational and unlawful.

He also held that the policy was likely to contravene the rights of social activist Ravi Balgobin Maharaj to enjoyment of property and respect for his private and family life.

In his ruling, Rahim ordered the comptroller and the Attorney General to pay Balgobin Maharaj vindicatory damages of $10,000, as well as his legal costs.

Balgobin-Maharaj, who was represented by attorneys Anand Ramlogan, SC, Alvin Pariagsingh, Chelsea Stewart and Jared Jaroo, filed a hybrid judicial review and constitutional claim challenging a “policy” by the Customs and Excise Division to consider adult sex toys prohibited goods.

This was the third ruling on the ban on importing sex toys. In July, last year, Rahim ordered the division to return a box of sex toys to sexologist Dr Raj Ramnanan, as he held that the issue of whether the seized goods were obscene under the Customs Act was for a magistrate to consider.

In January, he ordered the division to return a sex doll to an e-commerce consultant who imported it in 2018. Rahim held that the seizure was unlawful, again adding it was for a court to determine whether the item was indecent or obscene.

While Balgobin-Maharaj did not import a sex toy, he argued that there was never any prohibition on importing such items, but his shipping company had said in August 2018 that the division restricted the importation of adult toys. He expressed a desire to freely import, own and use adult toys and questioned whether there was a policy in place, since there was nothing published.

Rahim held that it was clear that while adult toys or sex toys as a general category are not prohibited by the Customs and Excise Division when interpreting section 45 (1)(L) of the act, the policy is that any item which closely resembles male or female genitalia is considered indecent or obscene.

He said the application of a blanket policy that relies solely on the description of an item may ignore societal norms and acceptable standards of morality, and thereby be unduly restrictive and artificial.

He said other considerations must include whether the use of the item was for medical purposes, including sex therapy.

He also found the restrictive policy was irrational and had the potential to affect not only Balgobin Maharaj but many people.

Rahim said while the court accepted that the legitimate aim of the section was the “preservation of public morality and decency,” the aim does not derogate from the principle that the virtues of morals and decency are to be interpreted to the change in societal norms.

The court disagreed on whether prohibiting toys that closely resemble human genitals is proportionate to preserving and protecting public morality and decency.

"Such a policy is wholly disproportionate,” he said.

He added that to classify an item as obscene because it resembled male or female genitals would be to ignore the other elements of the definition unrelated to description of the item, for example medical requirements.

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

For example, he pointed out: “Quite recently in this jurisdiction there has been an acceptance of same-sex relationships...which would have been considered immoral by many in the past and which some still consider to be so."

Similarly, smoking less than 30 grammes of cannabis in private has been decriminalised.

“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,” the judge held.

The State was represented by attorneys Josephina Baptiste-Mohammed and Sean Julien.