Guest Column: State vs. Sexbots

State vs. Sexbots
by Thomas E. Simmons

South Dakota Senate Bill 126 criminalizes the possession of childlike sex devices – or “sexbots.” Although sexbot manufacturing is not an industry with any sort of toe-hold in the state, the bill also forbids the distribution and manufacture of childlike sexbots. And the bill casts a wider net than just child sexbots; it bans the “ordinary” non-android versions, too.

Introduced by Rapid City’s Senator Jessica Castleberry, the Act to Establish the Crime of Possession, Manufacturing, or Distribution of Obscene Dolls had remarkably smooth sailing following two amendments, passing out of both chambers’ committees and both the Senate and the House unanimously. As Senator Castleberry explains on her blog:

[C]hild sized sex dolls … can be custom created to mimic the likeness of any child. Some also come with custom settings such as “rape” or “submissive.” This bill is an important step to protecting our children from predators, and helping law enforcement to identify people involved in child pornography.

Many journalists take a tongue-in-cheek approach to reporting on sexbot legislation. Sex trafficking, the pandemic, and the opioid crisis are more pressing concerns. Sexbots aren’t victims. But they are a growing problem, especially the childlike varieties. I’ve previously called for even broader legislation to criminalize or restrict the adult sexbot models as well.

Sexbot opposition makes for strange bedfellows. Conservatives are often joined by feminists, united in averting societal decay, predatory mindsets, and licentious attitudes. Such an alliance manifested around this bill. Although there was some opposition, not a single member from either side of the aisle opposed the bill. No one raised her or his voice to claim, “You can’t legislate morality.”  But don’t be surprised by a court challenge to the new law.

Safeguarding public morality has a long legislative history, stretching back many centuries. Still, some U.S. Supreme Court decisions have attacked laws grounded in “mere” morality. Justice Stevens, for example, once declared (in a dissent), that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Bowers v. Hardwick (U.S. 1986) (Stevens, J., dissenting) (overruled by Lawrence v. Texas (U.S. 2003)).

As articulated in a Scalia dissent, laws approved by elected representatives modulate morality – and even restrict personal liberties – on a regular basis. Good laws are typically founded in good moral sense. And laws often constrain personal actions, such laws criminalizing beastiality. “So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery,” Scalia emphasized, in Lawrence v. Texas.

Morally-based laws are, in fact, constitutional, wrote Scalia. Some sexual morality laws single out a particular group (e.g., sexbot users) and restrain their liberties (with jail time) when those laws are infringed, even if the violation occurs in the privacy of a bedroom. Even if no victim is directly harmed.

Some laws are ill conceived. Some are paternalistic. Some are unnecessary. Some are old-fashioned. Some are ridiculous or even downright moronic. But nothing in the constitution bans “bad” laws or “ill conceived” ones, either. I am personally opposed to Daylight Savings Time. I think it’s ridiculous. But ridiculous laws are presumed to be constitutional as well.

Laws which don’t touch on fundamental rights (like religion or speech) need only be rationally related to a legitimate government end. The courts will strike down laws which fail the “rational basis” test. But only a narrow band of laws should be overturned in the courts. Voters must exercise their franchise to undo the other legislative missteps.

If one wants assurances that Senate Bill 126 will survive constitutional challenges, one can look to a case like Williams v. Pryor, decided twenty-one years ago. In Williams, a court upheld legislation prohibiting the distribution of sex toys. The court reasoned that the “crafting and safeguarding of public morality … indisputably is a legitimate government interest.”

The Williams holding – and others like it – have been eroding ever since. Indeed, the Williams case relied upon Bowers, mentioned above, in upholding Alabama’s sex toy ban. And Bowers has since been overruled. The legitimacy of morally-based laws has been constitutionally weakening in the courts. That is what Justice Scalia was dissenting from.

Still, I’m not entirely convinced that Scalia was correct to characterize morality as a legitimate government end. Recognize this: Scalia’s deferential attitude toward legislative acts does not lead to smaller government; it permits governmental expansion. It extends the potential reach of lawmakers. Scalia also opined that laws criminalizing masturbation pass constitutional muster since they too are rationally related to the aim of preserving morality.

But who defines what constitutes moral behavior? Can lawmakers pursue any end and simply label it a moral prerogative? If the answer is “no,” then by what standard will a judge decide what is moral and what is not? How will judges sort out truly moral laws from others?

Could a new legislature, after listening to the testimony of public health experts, conclude that masturbation is a virtuous practice and that anyone caught not masturbating will be charged with a misdemeanor? The very suggestion is ridiculous. But recall that ridiculousness is not a constitutional standard.

Could the government make it a crime for a citizen to fail to turn his household clocks ahead each spring? After all, punctuality is important – moral, even.

Now, this isn’t to suggest that good laws aren’t moral laws, but government isn’t the author of morality. God is. And there are moral limits on what a government can do – even when the unanimous approval of elected representatives. These are some of the precepts of natural law.

Natural law aside, Castleberry’s legislation can claim more than a merely moral end. It is also aimed (indirectly perhaps) at protecting children from predators. And that is certainly a legitimate government end to which SB 126 is more than rationally related.

These are the views and opinions of the writer and not those of the University of South Dakota, its Knudson School of Law, or the South Dakota Board of Regents..