Judge rules seizure of adult sex toys unlawful

AN adult-toy entrepreneur has won her legal battle against the Customs and Excise Division, which had seized items from her adult novelty business shipment deemed “obscene and indecent.”

Justice Avason Quinlan-Williams held that the seizure of dildos and wand massagers in 2023 was unlawful and a violation of the businesswoman’s rights.

Quinlan-Williams further suggested legislative reform to provide clearer definitions and guidance for customs officers, recommending intervention to narrow the scope of section 45(1)(l) of the Customs Act to ensure fair and lawful enforcement while reflecting modern societal values.

She said the division did not consider the reasonable man in 2023 living in a diverse, sexually oriented and liberal Trinidad and Tobago.

“It is difficult to comprehend that the reasonable person publicly viewing an item resembling human sexual organs would result in them behaving in a morally reprehensible manner or become morally corrupt.”

In her mixed judicial review and constitutional claim, the businesswoman – who has asked to remain unnamed – said she bought the adult toys to replenish her inventory and fulfil pre-orders. Her clients include married couples, individuals with disabilities and medical professionals who use them for therapy.

When the goods arrived in August 2023, customs officers confiscated 18 items, asserting that they violated section 45 (1) (l) of the Customs Act, which prohibits importing indecent or obscene articles. The items were eventually returned by a court order.

The businesswoman said in the two years of business, she had not encountered any difficulty in importing and clearing adult toys.

In deciding the case, Quinlan-Williams found the rationale of customs officer Dwight Questel, who verified the items and deemed them in breach, while admitting there was no policy preventing the importation of adult toys, was “flawed.”

“The court would ask Mr Questel what test – objective or subjective – was used to determine that items that resembled human sexual organs were used for sexual stimulation.

“Has the Customs and Excise Division determined that obscene and indecent is satisfied if the items can be used for sexual stimulation?

“If that is so, by extrapolation, the importation of all prosthetic arms should be banned, since those can be used for sexual stimulation.

“If the test is sexual stimulation, then one wonders what the Customs and Excise officers believe are the main purpose of adult toys, which are not prohibited from being imported.”

Examining the “test” used by the division, the judge said Questel not only put much weight on the fact that the items resembled human sexual organs and were used for sexual stimulation, but “also considered the impact that the items might have on a reasonable person if (they were) left in full view on a public desk in the lobby of the Custom House – that they could become morally corrupt, excessively interested in sexual matters or encouraged to behave inappropriately.

“The test is whether the customs and excise officer had an honest belief founded on reasonable grounds based on generally accepted standards of behaviour, including sexual matters, societal norms and morality, that the articles and matters are indecent and obscene."

But she said in the court’s opinion it was more appropriate to consider the view of a reasonable adult in a maxi taxi.

She also criticised the outdated policy the division used to determine whether an item was indecent or obscene because it resembled male or female genitalia, and the irrationality of the division’s selective enforcement in only seizing one type of wand massage.

Citing a ruling by Justice Ricky Rahim in a similar case, Quinlan-Williams also found the businesswoman’s rights were infringed because of an unconstitutional application of a restrictive policy.

“The consideration that adult sex toys resembling male and female genitalia are obscene and indecent has been pronounced as unlawful and unconstitutional. Customs purported to add a consideration of sexual stimulation, which is also unlawful and unconstitutional.”

This, she said, had not only led to an incorrect application of the law, "but also an inconsistent and arbitrary application of the law. The evidence demonstrates that the uncertainty in the application of the law led to some items resembling sexual organs and used for sexual stimulation as being prohibited from importation while others...were not..."

She said the authority to seize was not in question or dispute, but the customs officers’ unlawful application of section 45.

“It is evident in this case, based on the authorities, that lawful authority was not exercised when deciding to seize the claimant’s items.”

In assessing compensation, the judge declined the claim for $250,000 for compensatory and vindicatory damages and instead ordered $30,000 for the infringement of the businesswoman’s rights.

Anand Ramlogan, SC, Renuka Rambhajan, Jayanti Lutchmedial, Ganesh Saroop, Natasha Bisram and Vishaal Siewsaran represented the businesswoman.

Michael Quamina, SC, Coreen Findlay and Kadine Matthew represented the comptroller of customs.

Stefan Jaikaran and Kristyn Lewis represented the office of the Attorney General.