A policy of the Customs and Excise Division prohibiting the importation of sex toys which closely resemble male or female genitalia has been declared unlawful.
In a 23-page judgement delivered at the Hall of Justice in Port-of-Spain yesterday morning, High Court Judge Ricky Rahim upheld a lawsuit from an E-commerce consultant who challenged the policy after his life-sized female sex doll was seized.
Rahim’s decision directly affects the division’s classification of sex toys, not its overall policy on the importation of such items, as in his evidence in the case Deputy Comptroller of Customs Bernard Nicholas claimed only items which closely resemble male or female genitalia fell under the prohibition policy.
Rahim ordered the division to release the doll to the man, whose name was withheld at the request of his attorneys over the fear of embarrassment, on the condition that he pays a $5,000 security bond. The bond will stay in place pending the hearing of his separate case for importing a prohibited item.
Rahim did not decide on whether the item could be considered prohibited, as he said it would be for the magistrate hearing his case to do so.
In his judgement, Rahim ruled that the policy was unlawful as it was based on the description of the adult toy and not on a custom officer’s assessment of whether it could be considered indecent and obscene, as required under Section 45(1)(L) of the Customs Act.
“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 power,” Rahim said.
Stating that the blanket policy was over-restrictive, Rahim ruled that customs officers are required to determine whether an item is indecent and obscene based on current societal standards of what is moral, decent and acceptable.
Referring to a recent judgement on same-sex relationships and a recent move to decriminalise small quantities of marijuana, Rahim said it is reasonable to presume that accepted standards of decency and morals change over time.
“There is a jurisprudential argument that morals and that which is accepted by society changes as society itself changes,” he said.
Rahim also ruled that the policy should have been published by the division to make it valid.
In his summary of the evidence, he sought to give a brief description of the doll based on the testimony of the Customs officers who dealt with the case.
“The doll had pubic hair on a very detailed vagina which contained a hole, enlarged breasts with defined nipples and a tool that resembled a pencil with a USB heating rod attached to it,” Rahim said.
The doll was described on the invoice as “a mannequin for entertainment.”
The decision in the case comes months after businessman and sex therapist Giriraj “Dr Raj” Ramnanan won his lawsuit over a shipment of adult toys that was seized by the division in 2017.
However, Ramnanan’s case dealt with the division’s delay in instituting forfeiture proceedings after the seizures and not with the division’s decision to seize the items on the basis that they were considered obscene or indecent.
The man was represented by Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan. Gilbert Peterson, SC, and Josefina Baptiste-Mohammed represented the Customs and Excise Division.