The Device that Dared Not Legally Speak Its Name:

Phoebe C. Godfrey
The Device that Dared Not Legally Speak Its Name:
The State, Sexuality, and Dildos in Texas, 1973–2008
The Supreme Court ruling Lawrence vs. Texas in 2003, based on the
Fourteenth Amendment of the U.S. Constitution, overturned state specific bans
on homosexual sex. Then in 2008 this ruling resulted, as law professor
Marybeth Herald surmised it would, in the 5th Circuit Court voiding the Texas
anti−obscenity laws that had previously banned both the sale (as in the possession
of six or more) and the promotion of dildos (Herald). This though is not the whole truth.
The use of a linguistic loophole had in fact allowed for the sale of dildos and
yet at the same time maintained their criminalization but only if named. In Texas,
dildos could only be legally referred to in a financial transaction as “education−
al models” and the harnesses used to wear the said “educational models” as
“educational harnesses.” For example, dildos as well as vibrators were not sold
in their original boxes, which promoted the sexual aspect of their use since their
“legal” use had to be educational. The educational purposes remained unclear,
although according to Charles Panati some Texas sex shops “routinely labeled
dildos as “condom practicing devices,” as “if sex educators were the state’s
only purchasers of dildos—as if the thousands of dildos sold were all being used
in classrooms” (Panati). Obviously not! In addition, the purchaser had to sign
a release form claiming that the use of their newly purchased “educational model”
was only for educational, artistic and/or scientific purposes (see copy at end).
These Texas laws affirmed what Gayle Rubin refers to as the “sex hierarchy”
(14)—the privileging of certain sex acts performed by socially accepted bodies
(white, male, heterosexual) over those engaged in by other stigmatized bodies
(non−white, female, homosexual) declared socially undesirable, immoral, perverted,
and inferior. For Rubin, sex laws are “the most adamantine instrument of sexual
stratification and erotic persecution,” in that, “[the] underlying criminality of
sex−oriented business keeps it marginal, underdeveloped, and distorted…only
operat[ing] in legal loopholes” (18−19).
Methodology
The legal loophole that wrapped itself around the sale of dildos (and by extension
vibrators) will be explored here through an analysis of the actual laws that
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formed part of the Texas Penal Code. I will then analyze three legal cases (two
of which went to court) that were the result of “undercover operations,” on the
part of Texas police officers who randomly chose to enforce the former Texas
anti−obscenity laws. Although the cases involved the sale/promotion of sex toys
in what appears to be a heterosexual context, I will nevertheless argue that
these bizarre Texan laws represented the sexual ideology of patriarchy, and
thereby targeted lesbian1 sexuality specifically, even as they also framed the
sexuality of women in general (Hale). To support this claim I will analyze the
relationship between dildos and vibrators which were developed with the invention
of electricity, and later batteries, as well as look at some recent demographic
data as to who (persons of which gender/sex/sexuality) uses such sexual
enrichment aids (Foxman, et al). Finally, these former Texas laws will be applied
to a more lengthy discussion of what has been termed the “dildo debates,”
(Findlay) exploring the relationship between “the real” and the “imaginary,” as
well as the concept of the “lesbian phallus” as put forth by Judith Butler. The
aim of this multi−faceted analysis is to theorize the meaning of these Texan laws
and to provide a concrete case study to see the “theory in practice,” thereby
ultimately increasing our understanding of the ways in which our sexualities are
created, defined, controlled, and transformed (Butler, Foucault, Weeks) through
the actual passing, enforcement and at rare times, the fortunate overturning of
sex laws.
The Texas Laws
The 2008 ruling in the United States Court of Appeals for the 5th Circuit that
declared unconstitutional the Texas Penal Codes which attempted to ban the
sale of sexual devices resulted from a class action suit filed by a number of
Texan sex toy stores. Using Lawrence v. Supreme Court (2003),2 as in “the right
to adult sexual intimacy in the home,” the judges ruled that “the statute has
provisions that violate the Fourteenth Amendment of the U.S. Constitution.”3
1
In this paper I use only the general term “lesbian” under which I include all self identified
women who are sexually/emotionally involved with other self−identified women. I do not make
distinction between “butch” or “femme” lesbians nor do I include MTF or discuss the issue
of masculinity in the sense of the cultural assumption that more masculine identified lesbians
(butches) would be more likely to use dildos.
2 Lawrence v. Supreme Court (2003). The Texas anti−sodomy/homosexual conduct law
was adopted in 1973, based on the 1943 prohibition of all acts of oral or anal sex committed
by both heterosexuals and homosexuals. The 1973 provision was limited to just any homo−
sexual conduct, which made Texas one of just four states to target only same−sex sodomy,
where as nine others had anti−sodomy laws that applied to all persons In 1974 heterosexual
sodomy was made legal in Texas.
3 U.S. Court of Appeals for the Fifth Circuit, No. 06−51067, March 10, 2008.
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These provisions included the Texan anti−obscenity laws passed in 1973 that
concerned the sale of dildos.
American anti−obscenity laws had their roots in the nineteenth−century morality
movement, in particular the Comstock Act of 1873, named after Anthony
Comstock, the founder of the New York Society for the Suppression of Vice
(McGarry). The watering down of the Comstock laws was a slow process and it
was not until the 1972 Supreme Court ruling Eisenstadt v. Baird that the
Comstock laws were finally eliminated (Tone). However, the overall constitutionality
of the anti−obscenity laws remained unchallenged, including those laws that
criminalized the making, selling, mailing, or importing of materials used exclusively
for sex (Rubin 4), as in the sale of dildos in Texas.
The Texas Penal Codes article 43.21 (1974)4 dealt with definitions for
“obscenity,” defined as that which “the average person, applying community
standards, would find that taken as a whole appeals to the prurient interest in
sex” (Texas 43.21 1974). Examples in the statutes of obscene materials or
performances include “patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated” sodomy, sexual
bestiality, sadism and masochism, male and female genitals in a state of
sexual arousal, covered male genitals in a discernible turgid state, and devices
designed and marketed as useful primarily for stimulation of the human genital
organs. The law went on to define “obscene device” as meaning a “device
including a dildo or artificial vagina, designed or marketed as useful primarily for
the stimulation of human genital organs” (Texas 43.21 1974). The use of the
word “primarily” here can be seen as being linked to the linguistic loophole
previously mentioned. Obscene devices were allowed to be sold as long as they
were referred to as “educational models,” implying that they were not “primarily”
being bought to stimulate human genital organs. Furthermore, the law stated:
“A person commits an offense if, knowing its content or character, he wholesale
promotes or possesses with intent to wholesale promote any obscene material
or obscene device” (Texas 43.21 1974). The term “wholesale promotes” was
defined to include to “manufacture, issue, sell, provide, mail, deliver, transfer,
transmit, publish, distribute, circulate, disseminate, or to offer or agree to do
the same so for the purpose of resale” (Texas 43.21 1974). Nothing specifically
was stated about the purchase of obscene devices, although the purchaser had
to sign a waver saying that it was for non−sexual purposes. This waiver thereby
ruled out the illegal sexual use of such a purchase, as in its insertion into
a person’s genitals or anus.
4
Ibid.
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Phoebe C. Godfrey
Texas Penal Codes article 43.22 1974 addressed “obscene display or
distribution” and states that “a person commits an offense if he intentionally
displays or distributes an obscene photograph, drawing or visual representation”
(Texas 43.22 1974). This would explain why sex toys were not sold in their
original boxes—most feature sexualized images on them; the packaging alone
then, would come under a Class C misdemeanor. Texas Penal Code 43:23
addressed obscenity as well but only if a someone “knowing its content and
character, he wholesale promotes or processes with intent to wholesale
promote any obscene material or device” (Texas 43.22 1974). In addition, if
someone “possesses six or more obscene devices or identical or similar
obscene articles” in that they are “presumed to possess them with the intent
to promote the same,” unless they have a “bona fide medical, psychiatric,
judicial, legislative, or law enforcement purpose” (Texas 43.22 1974). To
engage in this level of criminal activity was a Class A misdemeanor.
In addition to the Texas Penal Codes that dealt with the use and sale of sex
toys, there were also laws that dealt with the users, the most famous laws being
the former Texas anti−sodomy laws that were overruled by the United States
Supreme Court, in Lawrence v. Supreme Court (2003). Still, to make an
accurate assessment of the “anti−dildo laws,” the anti−sodomy ones must first
be reviewed. According to Texas Penal Code article 21.01 1974 that addressed
definitions, “Deviate sexual intercourse,” meant “any contact between any part
of the genitals of one person and the mouth or anus of another person; or
penetration of the genitals or the anus of another person with an object [italics
mine] and any form of oral sex” (Texas 21.01 1974). Thus this law covered
heterosexual oral sex, as well as any use of toys. Texas Penal Code 21.06
before Lawrence v. Supreme Court (2003) specifically addressed homosexual
conduct, in that “a person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex,” (Texas 21.06 1974) thereby
committing a Class C misdemeanor. However, 21.01 and 21.06 were not
overruled in 2003 and thus the use of “obscene devices” remained illegal until
2008. Joanna Grossman, a Texas lawyer commenting on the Lawrence case,
recognized the links between the Lawrence decision and the anti−obscenity
ones. She stated, “The Lawrence decision left a variety of laws in a sort of legal
limbo—it is suggested they may be unconstitutional, yet they have not yet been
struck down. Now it seems that the Texas [obscene devices] law may belong to
this class of laws as well” (Grossman). And of course she was right.
The Texas Court Cases
In the case of Regalado v. the State of Texas, 872 S.W. 2d 7 (1994) Noe
Regalado was convicted of possessing more than six obscene devices with the
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The Device that Dared Not Legally Speak Its Name…
intent to sell. He was sentenced to thirty days in jail and fined $250. As part of
an “undercover operation” Officer Andrews of the Houston Police department
went to After Hours News, an “adult establishment,” and inquired about a “Flexi−
lover” (a vibrator) (Regalado). Officer Andrews then asked to look at it and decided
that it fit the description of an obscene device and noticed that there were more
than six on the premises. He left to inform his patrol partner of the violations.
They then returned together to arrest Regalado and seized all seventeen Flexi−
lovers. On appeal, Regalado’s argument in court that the law was unconstitu−
tional because it violated his right to sexual privacy was not accepted. The
reason for this was that U.S. privacy laws only protect activities relating to
marriage, U.S. procreation, contraception, motherhood, family relationships, child
rearing, and education—hence all aspects of heterosexual norms not sexual
pleasure, let alone so called deviant sexual conduct, as in the use of dildos.
In the case of Webber v. The State of Texas, 21 S.W. 3rd 726 (2000), Dawn
E. Webber was convicted of promoting an obscene device and was sentenced to
30 days in jail and fined $4,000. In an “undercover operation” (Webber), Deputy
Sheriff L. Carlin entered a licensed Adult Video Store and told appellant she was
having marital problems and was looking for a vibrator to sexually gratify herself.
Carlin was shown four devices by appellant and given a demonstration of their
speeds and flexibility. As a result Webber was arrested. Her statement about her
arrest was, “I have been arrested for selling this before and I’ll go to jail for it
again” (Webber). At the trial the prosecutor referred to the device Carlin bought
as a “dildo.” And yet during the trial there was some questioning as to the
definition of a dildo, which was resolved by referring to common usage, which
defines, dildo as an “object serving as a penis substitute for vaginal insertion,”
and by quoting Webster’s dictionary which defines them as “artificial erect
penis[es]” (Webber). According to the court these definitions covered the device
in question and therefore Webber was found guilty. However, despite all the
focus on defining dildos, officially what Carlin bought was a vibrator (given the
references to different speeds), not a dildo. Even though vibrators are not
specifically mentioned in the statutes, they still had to be referred to as
“personal massagers” in order to be “legally” sold. Regardless, it was affirmed
by the court that there was no “mistaking the shape of this dildo for anything
other than a male penis” and that as such it was capable of “stimulating the
female sexual organ” (Webber). As for the concurring remarks Judge Bea Ann
Smith quoted Justice Brown who from the previous Regalado case, had ironically
stated “Here we go raising the prices of dildos again” (Herald 27). She also
stated “I do not understand why Texas law criminalizes the sale of dildos…Even
less do I understand why law enforcement officers and prosecutors expend
limited resources to prosecute such activity. Because this is the law, I reluctantly
concur” (Webber).
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A third and highly publicized case of arrest that took place in October of 2003
involved Joanne Webb, who made her living selling and promoting sex toys at
house parties promoted by a company called Passion Parties. Joanne Webb—
who identifies as a Christian and a Republican, a married mother of three, and
a former grade school teacher—was arrested in Burleson, Texas, by two under−
cover narcotics officers posing as a married couple, supposedly in search of
a vibrator. The police were notified of Webb’s activities by an anonymous phone
call, just as in the case of John Geddes Lawrence and Tyron Garner, of Lawrence
vs. Texas, likewise leading to their arrest. Webb sold the undercover officers
a vibrator, which was legal, but because she explained its sexual uses she
violated Texas’s obscenity laws. As a result, Webb faced a $4,000 fine and up
to a year in prison. She went to jail but due to media attention after her arrest
the DA dropped the case.
In another case from September 2003 Sergio Acosta from El Paso, an adult
bookstore clerk, was “arrested in a citywide ‘sting’ operation after he sold a sex
toy to undercover cops” (Cuevas 101). He too faced the possibility of jail time
and a $4,000 fine but his case (Acosta v. Texas 05−1574) was dismissed by the
judge who said it was unconstitutional, although El Paso DA “overturned that
ruling and said the prosecution could go forward” (Stohr)5. One reason proposed
by Robert Jensen is that “the DA has a bigger political cause than just the sale
of sex devices” (Cuevas) and that has to do with the whole issue of obscenity
and how it is solely based on community standards that are completely open to
political manipulation. Police in El Paso had been pressured by some members
of the local community to rid the city of adult bookstores and strip clubs,
contributing to Acosta’s arrest. Acosta’s lawyer Roger John Diamond felt that
such cases are more about a direct attack on individual sexual freedom as were
the previous anti−sodomy laws.
Analysis of Cases
Without these documented cases one could have assumed that even though
the Texas’s anti−obscenity laws remained active until 2008, they would have no
longer been enforced. Obviously this was not the case. Thus, the random and
highly selective application of these laws was alive and well, as was the court’s
apparent tendency to conflate dildos and vibrators, and to define them in relation
to male sexual organs. Both tendencies are historically and sexually inaccurate,
but such inaccuracies may in fact provide insight into the patriarchal logic behind
these laws.
5 This law was ratified in 1973 and made effective January 1, 1974 and amended in
1975, 1979 and in 1993, but no significant changes were made.
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The Device that Dared Not Legally Speak Its Name…
Dildos vs. Vibrators
In Texas the control over the sale of dildos and vibrators came at a time in
the 1970s when the personal “vibrator” appeared to have become somewhat
socially acceptable. Edward Kelly in his article “A New Image for the Naughty
Dildo?” (1974) enthused that the lauded appearance of the personal vibrator
signified a new level of sexual enlightenment, so long as they are not referred
to in articles and advertisements as “dildos.” Had they been thus called, he felt
that the “public would be outraged,” although he went on to say that their intend−
ed use seems perfectly obvious when such terms as “penetrating relaxation”
are used by advertisers to describe their function (808). He affirmed that “all
dildos are shaped like the male penis,” but that the sale of personal vibrators
was done in such a way as to obscure their sexual use and to emphasize their
health benefits as massagers. Thus, despite noting the difference, Kelly saw the
dildo and vibrator as interchangeable, and he even in one place refered to them
as “dildo−vibrators.” However, historically this has not been the case and even
though vibrating dildos are now available on the market and are referred to as
such, there remains a significant distinction that, as I will argue, ties in with the
Texas’s “anti−dildo−naming” laws.
Early vibrators resembled extremely large kitchen appliances and some were
even steam powered (Maines). According to Hoag Levins, the first patent for an
electrical vibrator was granted in 1912. The promotion of vibrators became
popular in the 1920s−30s but between the 30s and 60s “vibrator advertising
disappeared” (Herald 17). Then by the late 1960s vibrator advertising
reappeared, appealing to women to take care of their physical needs. An emphasis
on clitoral orgasm followed from Anne Koedt’s 1970 article “The Myth of the
Vaginal Orgasm,” a feminist critique of Freud’s version of female sexuality “that
had become rooted in not only psychoanalysis, but also medicine and popular
culture” (19). This debate over vaginal versus clitoral orgasm can be seen to be
reflected in my emphasis on the differences between vibrators and dildos:
vibrators being for stimulating the clitoris and dildos being for penetration. This
distinction was also upheld by the Texas laws in that, “if it vibrate[d] it [couldn’t]
look like a penis and if it look[ed] like a penis it [couldn’t] vibrate” (Barton and
Wilder). The reason for this may have been that, if it looked like a penis, then it
could be argued that it was for “educational” purposes, while vibrations had no
educational purposes. If, on the other hand, it was a personal massager, it had
no business looking like a penis. Regardless of the exact reasons for my
purpose the distinctions between the two require exploration.
Obviously vibrators can be used for penetration, but again this is not generally
their primary function. That the word vibrator was not used in the Texas statues
seems to indicate that vibrators were/are more socially acceptable and are in
fact more commonly purchased/used than dildos when it comes to the general
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Phoebe C. Godfrey
public (placed as the top sellers in sex shops with dildos in the top five),
although in most sex surveys the two are conflated making exact data hard to
find (Silverberg).
However, dildos and vibrators are highly distinct (Silverberg; Panati). Dildo,
based on the Latin dilatare, “to open wide” is also the basis for the Italian verb
dilettare, “to give pleasure” and also related to the Italian noun diletto “to
delight” (Panati). Dated by archeologists as far back as 26,000 years dildos are
the oldest sex toy having always been phallic in shape, with many today looking
exactly like penises by having a glans, testicles, and an indent representing the
opening, as well as veins. They are designed for penetration, either on the part
of an individual alone or implying that they will be used by one who “penetrates”
and one who is “penetrated.” Thus, they may be used and worn by women to
penetrate other women or men or by men to penetrate other women or men.
However, in all but the first scenario the dildo is the “other” (a spare) in relation
to the presence of an actual biological penis. In this light, the dildo takes on a
distinctly lesbian connotation that for some may seem strange, even problematic
since a look−alike penis, in particular if worn, raises questions about women−
centered sex versus imitative hetero−centric sex (Findlay; Minge and
Zimmerman; Smith). Suffice it to say here, since I discuss this issue in more
detail later on, that the very word dildo and its corresponding imagery of a woman
replacing a man in the penetration of another woman, is found to be much more
perverse, potent, and controversial than that of a vibrator (Lamos 109).
It is therefore interesting how in the three Texas cases, the offending items
were in fact all vibrators, but were all referred to in court as dildos. As men−
tioned previously, vibrators specifically are not listed as obscene devices and
thus were not strictly illegal in name (more in association and intended use) in
quite the same way that dildos were, but they would however come under the
rubric of a “device designed or marketed as useful primarily for the stimulation
of human genital organs.”6 Hence they were illegal if the seller implied that their
primary intended use was to vibrate one’s “human genital organs” as opposed
to, say, one’s human legs. In addition, were the vibrator also used for penetration
it would have also been found to be an obscene object and therefore illegal. Yet
the fact that in the Texas statutes dildos, not vibrators are named is, I believe,
highly significant. It would seem that to utter the word “dildo,” as Kelly notes, is
far more controversial and loaded with many more deviant sexual
connotations than the word “vibrator,” hence the statues’ greater moral emphasis.
And key to those “more deviant sexual connotations” is my assertion that only
the dildo slips into the role of being a phallus, or better yet an exclusively “lesbian
phallus” (Butler).
6
108
This was reported in 2006 with no further information available on the case.
The Device that Dared Not Legally Speak Its Name…
To further support my claim that the dildo has a uniquely lesbian connection,
I can cite results of two published surveys on sexual practices including the use
of sex toys. The first is a 2006 epidemiological study by researchers from the
University of Michigan’s School of Public Health that was directed at the general pop−
ulation (Foxman, et al.) and the second is a 2000 Institute of Medicine report
on health−related behaviors of lesbians, highlighting “the need for greater under−
standing of the sexual activities of lesbians” (Diamant 41). In the first study, of
the sample, “1114 sexually active Seattle residents aged 18−39 almost half
(45.1%) had ever used sexual enrichment aid, such as a vibrator, beads and
balls, dildos, pumps, extenders or rings” (Foxman 157). Of this 45.1% total
“females (33.1%) were more likely that males (20.3%) to report use of a sexu−
al enrichment aid during a typical 4−week period…” (Foxman 157). In the second
study that focused primarily on lesbian sexual activities the survey only asked
about the uses of dildos and vibrators. Out of a sample of “6935 women from
all states who self−identified as lesbians” (Diamant 42) “69% has used a vibra−
tor with a partner, 65% has inserted a dildo into a partner’s vagina or had a part−
ner insert a dildo into her vagina, and 62% has inserted her fingers or a dildo
into a partner’s anus or had a partner insert a finger or a dildo into the respon−
dents anus” (Diamant 42−3). Thus, it seems evident based on the comparison
of these two surveys (the only two that have specifically researched the use of
dildos and sex toys more generally) that lesbians use dildos more than any other
demographic.
There is, however, one claim to the contrary made by Charles Panati as to
“who” constitutes the biggest consumer/user of dildos. He states that although,
“Lesbian couples are, perhaps, understandably, big consumers of dildos” it is
“Gay male couples, …, [who] are thought to be the biggest purchasers of
dildos” (Panati 74). Unfortunately, Panati does not give a reference for this claim
other than proposing that the reason might have to do with “the unique way
a gay man regards a penis” (74). Whether he is correct or not cannot be
determined as there has yet to be a survey focusing exclusively on gay men and
their use of dildos to support his claim. Still, his point nevertheless seems to
add to the notion that the dildo is not a penis substitute, as gay men have no
shortage there, but rather fits more into the phallus category. This is made
apparent when he discusses, based on the observations of sex store workers,
the reactions of straight men to the presence of a dildo. He states, “Most
squeamish of all are straight men whose machismo seems wounded by the
thought of having to buy a disembodied phallus” (75). For this tidbit there is also
no reference but again it certainly adds a plausible piece to the motive behind
these Texas laws.
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Phoebe C. Godfrey
What is a Dildo?
To find answers to this question, I return to the definition of a dildo used in
Webber’s case: “a penis substitute for vaginal insertion,” or “an artificial erect
penis.”7 Assuming for a moment that dildos are in fact “artificial penises/penis
substitutes,” it seems that to have access to the penis and not the man is high−
ly problematic. Since in Western culture the penis is seen to “stand in for and
up for the man” (Potts 86), to separate the two is to cut into the heart of how
hegemonic masculinity has been constructed. To re−quote Panati, straight men
may feel “wounded by the thought of having to buy a disembodied phallus.”
Although the depiction of “covered male genitals in a discernible turgid state”
also belongs to the list of obscenities, obviously the erect male penis in general
is not a problem, as long as it remains hidden under clothing.8 Yet the “artificial
erect penis,” a.k.a the dildo, was classified as an object and not as a “body
part” and was therefore not only illegal if used even privately for insertion into
a vagina or an anus, but also, as discussed, if named when purchased. Hence,
the linking of the dildo directly with the penis, as an artificial penis/penis
substitute seems to be what gets it into trouble even though this conflation is
incorrect, despite what the statutes claim.
What the terms “artificial penises” and “penis substitutes” imply is that the
dildo is a fake as opposed to the real, as in that which belongs to the body.
However, for Butler this distinction is not a distinction at all. Butler states that
“[t]he materiality of the body is not to be taken for granted, for in some sense
it is acquired, constituted, through the development of morphotology” (Butler 69).
In this manner the body is itself a social construction adding and subtracting
epistemological parts at will (Fausto−Sterling) and thereby created through the
process of ascribing it meaning. The same can be said for the dildo, putting it
into the same morphological category as the penis (as will be discussed in more
detail). Still, it must be assumed that this level of philosophizing was not practiced
by the Texan lawyers who drafted these statutes, which thus leaves me to
surmise that the issue of illegality rested on the act of buying the artificial penis,
mixing sex and money, as Rubin argues when she states that “[s]ex law
incorporates a very strong prohibition against mixing sex and money, except via
marriage” (19). By focusing on the purchase, the commodification of sex is also
seemingly being controlled, but not completely outlawed as long as the linguistic
loophole is in place. Yet after the purchase is made, the act of insertion (regard−
less of where) was still illegal, though obviously much harder to trace, catch, and
convict, as evident from the absence of any such cases.
7
8
110
Texas (2003).
Texas (2003).
The Device that Dared Not Legally Speak Its Name…
So then the problem was that the symbol of male domination, the penis, was
up for grabs, being bought and sold, worn and used primarily by women and
worse yet by lesbians (as supported by the data) in ways that rob it of its
exclusive meaning, and thereby thwarting the exclusive masculine claim to being
the one who “wants to fuck and not be fucked” (Reich 258). As Cathy Griggers
states, “By appropriating the phallus/penis for themselves, lesbians have
turned techno−culture’s semiotic regime of simulation and the political economy
of consumer culture back against the naturalization of male hegemony” (4). The
mass production and sale of dildos has created the possibility for new scripts,
hence new spaces in which women and in particular lesbians can invent and re−
invent their gender identities, decoupling sexual acts from sexual organs, chal−
lenging the association of male with “penetrator” and female with “penetratee.”
As Jeanine Minge and Amber Zimmerman state, “My performance of sexuality
when I use a dildo is mine to choose” in that the dildo is not “a replacement for
the penis” (347), it is rather whatever one wants it to be, including according to
the former statues, an “educational model.”
Because the dildo could be sold and bought in Texas only as long as it was
called an “educational model” with no references to sex or penises or even
dildos, it seems that the words/names themselves are the problem and not the
devices. Yet when examining the words put forth in Webber’s case and their
accepted meanings it must be asked whether or not a dildo really is an “artifi−
cial penis”/“a penis substitute,” even though it may look like one and/or may
act like one in terms of sexual use? According to many lesbian/feminist
theorists it is not; and if it is in fact not a penis substitute then what is it? Finally,
if the dildo is not a penis substitute does changing its meaning help or hinder
our understanding of these former laws?
Obviously, buying a dildo in Texas was not a straightforward purchase. This
was not only because of the legal issues involved but also because of the irony
that in purchasing a dildo the buyer and perhaps intended user or wearer could
actually end up with a so called “penis substitute” that is better “than any man
possesses” (Hamming 331). Similarly, as Wilton argues, “it is not hard to see
that dildos may be perceived as superior” (Wilton 200), in that they are as June
Reich states “powerful fucker[s]” (Reich 260).
The point in examining this possibility is to again find answers or even merely
clues as to the cultural meaning systems, explicit and implicit, embedded within
these former Texan laws. Thus, the use of the word “better” in describing the
dildo is that the buyer may acquire a “penis” in any shape, size, color or texture
she/he wants, either to suit her/his (acting possibly as a back−up) fancy and/or
that of her/his partner. For when it comes to function, “a dildo never suffers
from impotence or premature ejaculation” (331) and it never causes unwanted
pregnancies, nor does it generally “show up” when not desired. In addition, as
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Minge and Zimmerman describe the dildo may even help heal former experiences
of sexual abuse transforming “[w]hat a penetrative object is and can be” (Minge
and Zimmerman 347). In this manner it could be argued that not only does the
dildo “act as a technologically enhanced extension of the penis,” but that it
“becomes that which transforms or threatens to transform the male, the penis,
into the ‘secondary’ supplement” (347). One could thus even go so far as to
assert that it is not the dildo that is an “artificial penis” but the penis that is an
“artificial dildo” (Lamos 112). Colleen Lamos states that part of the dildo’s
scandal is its ability to “reduce the penis to a sex toy” (112). Yet even if the
dildo can “outperform” the penis, it remains forever linked to the penis,
constructed as “a faithful substitute or as a parodic mime of its phallic
pretensions” (111). In this manner both the dildo and the penis still fall short
of the symbolic phallic ideal even as they are defined by it, as well as by each
other (Butler; Findlay) although as Butler proposes, “perhaps [even] the promise
of the phallus is always dissatisfying in some way” (57).
The aim of my speculations as to whether or not dildos are culturally defined
as artificial penises/penis substitutes is to understand better the Texas
statutes. The controversy over the dildo was first addressed by feminists in the
1960s and 1970s with the “folklore” creed being that “lesbians never used
dildos, and to suggest otherwise was to malign the gender” (Slade 421). In
contrast, now “it is hard to find a lesbian publication that does not carry ads for
advanced instrumentation” (421). Thus, for most queer theorists such discussions
both past and present are now known as the “dildo debates” (Findlay; Slade).
Within the dildo debates the question is likewise whether or not the dildo is seen
as an artificial penis, hence phallocentric, as defined by the state of Texas, or
as distinct from the penis and thus non−phallocentric (Hamming 332). This
difference, like that between the vibrator and the dildo, can be subtle and yet
imbued with great significance. For many 1970s radical lesbians like Catherine
MacKinnon, Andrea Dwokin (Smith 302), and Shelia Jeffery, who Smith refers to
as “one of lesbian feminism most prominent antidildo crusaders” (299), dildos
were/are felt to represent imitative masculinity, thus heterosexuality, and were/are
therefore problematic, thereby supporting the perspective of the Texan laws.
Furthermore, according to Smith, Jeffery denounces “all women—lesbian,
bisexual, hererosexual, and solo sexual—…as traitors if their desires include
penetration” (299). In contrast, for lesbians who are prosex/“prodildo”/“young”
(Smith 302) the dildo has a uniquely independent role distinct from the penis.
Furthermore, the view that the desire to be penetrated and to penetrate only
exists in a purely heterosexual context is seen by many more pro−sex lesbians
as firstly heterosexist and secondly indicative of a limited understanding of
human sexual expression (Bright). Thus, for Susie Bright the issue is to allow the
dildo to stand for itself, in a nonrepresentational way, or merely representing
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The Device that Dared Not Legally Speak Its Name…
whatever the user, wearer, and enveloper desires and/or imagines it to be. From
this perspective, the dildo along with the harness that enables its wearer to
penetrate in ways otherwise not possible can be theorized as transcending not
only the limitations of heterosexuality, but more profoundly those of gender and
anatomy as well. As Smith states, “the dildo maybe be the key we’ve been looking
for to unlocking gender norms and expanding women’s sexuality” (302); a key that
has seemingly been working for thousands of years, despite legal attempts to
keep it from unlocking anyone’s, and in particular any woman’s, door.
The conceptual, fantastical power of the dildo is in its role “as the masquerade
of phallic desire” (Lamos 117), whereby it severs the assumed relationship
between bodies and gender, illuminating in very direct and visually charged ways
that all gender “is sexually performed”(117). Likewise, Elizabeth Grosz argues
that sexuality and desire “always occur at a conjuncture, an interruption, a point
of machinic connection” (Grosz 78). In other words, the bringing together of
distinct elements or parts or objects creates a connection, an energy, a pulse,
a feeling, giving them a “life of their own” (78). This supports Linda Hart’s
observation that “[l]esbian s/m erotica has become increasingly assertive about
claiming dildos as the real thing. The descriptions that dominate are those that
uphold the idea that dildos occupy the status of the real. Rarely if ever does one
find lesbian erotica that refers to the dildo as a joke, an imitation, or a substitute.”
(Hart n/a). For example, she explains that, “It has become common to speak of
‘watching her play with her dick,’ or ‘sucking her off,’ or ‘your dick find[ing] its
way inside of me’” (n/a). The dildo in this example has become a “dick” there−
by further enhancing the notion of a performance, a verisimilitude, that creates
the real, and thus as the real it inadvertently ceases to be a performance and becomes
really real. In other words, as Reich states, “Mimicry problematizes the real by
representing both the presence and absence of a construction” (Reich 262).
Thus, for Reich “[t]he dildo performance is ‘queer’ not because it is part of a gay
or lesbian sex but because it doesn’t respect the distinctions of a hetero/
homosexual dichotomy” (262). In not respecting any hetero/homosexual
dichotomies it could be said that the dildo itself becomes the “lesbian phallus”
(Butler).
The Lesbian Phallus
Judith Butler’s conception of the lesbian phallus is dependent on Lacan’s
notion that the phallus is not the same as a penis, or even as “the penis”
(Wilton 195) and can thus be symbolic of “body parts” other “than the penis”
(Butler 84). Still, Butler aims to go beyond what she sees as Lacan’s “hetero−
sexist structuralism” (84). Therefore, in arguing that “other body parts or
body−like things other than the penis are symbolized as ‘having’ the phallus”
Butler opens up the possibility that the “lesbian phallus,” although symbolic,
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Phoebe C. Godfrey
has the same relationship with the dildo as the “phallus phallus” has with the
penis. In other words, the penis is to the phallus as the dildo is to the lesbian
phallus, but then again not quite. For just as the penis has a material existence
so does the dildo. Yet because the dildo remains detachable it retains more of
the imaginary, hence symbolic qualities making it perhaps ironically “more phallic
than penises” (Smith 298).
This idea of the dildo being more “phallic than penises” connects to Butler’s
affirmation that the “lesbian phallus” is the “alternative imaginary” while the
penis is the “hegemonic imaginary.” As such both are performatively constructed
which leaves room for the dildo to further slip into the equation. For if the penis
is not really “real” in any immutable and essential way, then by consequence
neither is the dildo. Therefore neither one is complete without the imagination
creating meaning, which the body/mind then act out and interpret. In this
manner, in tune with Grosz’s analysis of lesbian desire, the dildo “transmutes
into another, becomes something else through its connection with something or
someone outside” (Grosz 78). It is therefore through this process, this connection,
this becoming that the dildo (and likewise the penis) gains its quality of the real,
“eliminating the privilege of…” “the real,” (the penis), over “the imaginary,” (the
dildo) (Grosz 81) creating what Reich refers to as “genderfuck”, whereby
“realness …works strictly at the level of the performance of dominant stereotypes
without ‘corresponding’ genitalia revealed” (Reich 260). Thus, in the ultimate
realm of meaning construction the distinction between real and imaginary
evaporates, unless there are laws designed to distinguish, control and name,
even by not naming. Of course one could argue that this is exactly the purpose
of said Texas laws (and perhaps all laws) in that in their passing they create and
privilege some minutely detailed versions of truth over others, some human acts
over others, some expressions of sexuality over others, some forms of penetration
over others…etc., until the whole of social existence has been given meaning by
being defined and named, even to the point of rendering some names illegal.
Conclusion
In my analysis of former Texan sex laws and their documented random
applications, I have argued that the criminalization of the selling/naming and the
use of dildos was ultimately about the control of female, in particular lesbian,
sexual expression. This is supported not only by the fact that lesbians, according
to existing data, are the largest consumers/users of dildos but also by the fact
that something akin to a “lesbian phallus” could and even does exist, which I
have proposed is, in materiality, the dildo. For although Butler states in her
essay that, “what is needed is not a new body part” (91) the beauty of the dildo
is that is it only a “body part” when and for as long as one chooses to make it
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The Device that Dared Not Legally Speak Its Name…
so, contributing to, as argued, the “displacement of the hegemonic symbolic of
(heterosexist) sexual difference” (91).
That the name “dildo” was outlawed as was the ownership of six or more
(indicating the intent to sell) shows that its very name had subversive powers
that were felt to be problematic enough to warrant silencing. Ironically though,
in the application of the law the objects seized in the court cases were in fact
vibrators. This conflation of dildos and vibrators, as discussed, is highly
problematic in that they in fact represent very different aspects of female
sexuality both historically and in actual use. Furthermore, if as claimed by the
laws, dildos were merely “artificial penises” and/or vibrators then surely they
would not have posed enough of a threat to the “real deal” to merit being
outlawed, even though they could still represent a usurpation of the heterosexist−
male sex role. However, in outlawing the dildo, the real deal is in fact subse−
quently created. Thus, Butler’s claim that there is essentially no “real deal,” only
the “legal hegemonic imaginary,” and in this case, the “illegal alternative imaginary,”
shows the role of these law; to assure the supremacy of the “hegemonic imag−
inary” that no doubt for the laws makers was seen as anything but “imaginary.”
Finally, Butler concludes her essay by calling for “the critical release of alterna−
tive imaginary schemas for constituting sites of erotogenic pleasure” (91). This
“release” for me includes the overruling of these Texas anti−obscenity laws,
thereby further liberating this ancient pleasure−inducing device, as well as
human sexual expression in general. As such the “Texas dildo” can now not only
be allowed to be legally sold, bought, worn, and inserted wherever one so chooses,
but one may also do so while joyfully uttering its name! And in so doing all self—
proclaimed dildo lovers may continue to further its 26,000 year legacy of
“fucking with the phallus” (Godwin 106) thereby providing a feasible answer to
Justice Brown’s question as to why Texas law criminalized the sale of dildos.
Phoebe C. Godfrey
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