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May 25, 1990.

RANDY L. HUGHES, Appellee.

The opinion of the court was delivered by

The defendant, Randy L. Hughes, was charged in Sedgwick district court with promoting obscenity by selling two obscene devices contrary to K.S.A. 21-4301. The trial court found the provisions of K.S.A. 21-4301(1), (2), and (3)(c) to be unconstitutionally overbroad and dismissed the case. The State appeals pursuant to K.S.A. 1989 Supp. 22-3601(b)(2) and K.S.A. 22-3602(b)(1).

Hughes, the manager of an adult bookstore in Wichita, was arrested and charged with selling obscene devices: "The Sexplorer Pleasure System," a vibrator kit with a dildo attachment, and "Miss World," an inflatable doll with an artificial vagina, to undercover police officers. Defendant moved to dismiss. The trial court held an evidentiary hearing. Dr. Douglas Mould, a state-certified

[246 Kan. 608]

      psychologist and sex therapist who was called by the defendant, was the only witness.

  Dr. Mould practices psychology, including sex therapy, in Wichita. His main area of research and writing is devoted to the problem of women who do not reach orgasm during sexual intercourse. Dr. Mould testified that anorgasmic women may be particularly susceptible to pelvic inflammatory diseases, psychological problems, and difficulty in marital relationships.

  Dr. Mould testified it is common in the treatment of anorgasmic women to recommend the use of a dildo-type vibrator. Such a vibrator is penis-shaped and used primarily for vaginal insertion. There are three reasons for this recommendation. First, some women may be less physiologically responsive than others. The vibrator is helpful for these women in the same manner as are the vibrators commonly used by physical therapists in the treatment of people with cerebral palsy. In treating cerebral palsy, the vibration has a specific effect on the sensory and motor enervation of the muscle. A vibrator is used in sex therapy to cause vibration to go through the pubic bone to the sensory endings called muscle spindles within the pelvic musculature. This helps lower the physiological threshold for initiating the spinal reflex.

  According to Dr. Mould, the second reason for using a vibrator in dildo form is to lower a patient's inhibitions and produce intense stimulation that is difficult to duplicate manually. This is especially helpful to women who have built up a history of non-orgasmic sexual experiences, which causes what is called orgasmic inhibition.

  The final reason for use of a vibrator in dildo form, or a dildo alone, is for women who have relaxed pelvic muscles which cause the orgasmic response to be less intense than usual. These women are prescribed Kegel's exercise, with a dildo or dildo-type vibrator inserted to provide resistance. This exercise is essential for women suffering urinary stress incontinence. Dr. Mould stated that many women suffer varying degrees of incontinence at some point in their lives. The condition is often caused by the stretching of the pelvic ligaments during childbirth, which causes the bladder to prolapse. Kegel's exercise, in which the circumvaginal muscles are contracted and strengthened, is universally acknowledged as

[246 Kan. 609]

      the most effective way of avoiding urinary stress incontinence, short of surgery.

  Dr. Mould cited a study which estimated that 20% of all sexually active women have used a vibrator at some point during their lives and stated that he knew of no medical harm which could be caused by the use of a vibrator on the female genital organs. Dr. Mould testified that he often directs his patients to adult bookstores to find dildo vibrators suitable for their therapy treatment and that he has ordered or purchased such devices for his patients. He testified that the vibrator kit which defendant was arrested for selling was substantially identical to other vibrator kits he had recommended for use by his patients. It was his opinion that, if such kits were to become not readily available to the general public, anorgasmic women would be "substantially impacted." He stated that unavailability "would put a very serious block in the way of effective treatment." He testified that effective vibrator kits functionally similar to the one sold by defendant could be obtained in adult bookstores, through mail-order establishments, and at some department stores.

  Dr. Mould testified that he knew of no therapeutic purposes for an inflatable doll and believed such a device to be "more a novelty than any serious sex tool." The inflatable doll was not the basis of the trial court's determination of the issues of this case, and we will not discuss it further in this opinion.

  The prosecutor contended that a dildo-type vibrator is obscene per se under the definition of the statute. The trial court inquired, "Is it your position that a device can be obscene even if the motivation for using the device is not obscene?" The prosecutor responded, "The legislature in their definition determined, at least in this case, that a device is obscene if it is designed and marketed or marketed primarily for the stimulation of the human genital organ." The court then asked, "My point is, is it still obscene even though the motivation for the stimulation is not obscene but therapeutic?" The prosecutor responded, "The definitions under our law would make that finding."

  The trial court took the matter under advisement and later issued a carefully prepared and well-reasoned memorandum decision holding that the provisions of K.S.A. 21-4301(1), (2), and (3)(c) are unconstitutionally overbroad because they subject licensed

[246 Kan. 610]

      physicians, psychologists, and sex therapists to possible criminal sanctions. The court made it clear that it did not render its decision on First Amendment grounds. As this case deals with devices rather than books or movies, it is different from the great majority of the published obscenity cases, which are typically argued and decided under the First Amendment's guarantee of freedom of speech. The court decided the case, instead, on the grounds that the statute infringes on the right to perform or receive recognized, legitimate medical treatment because it invades the right of privacy, and because it declares all devices encompassed by the statute obscene without requiring a determination of obscenity by constitutional standards.

  The court severed the provisions of K.S.A. 21-4301 as they pertained to obscene devices, finding such could be done without affecting the enforcement of the other provisions of the statute. See Kansas Retail Trade Co-op v. Stephan, 522 F. Supp. 632, 643 (D. Kan. 1981), aff'd in part, rev'd in part 695 F.2d 1343 (10th Cir. 1982). This procedure was proper under the severance clause of K.S.A. 21-4301b.

  Two issues are raised on appeal by the State: whether the defendant had standing to challenge the constitutionality of the statute, and whether the trial court erred in finding the statute overbroad. It will be helpful to our discussion to begin with the provisions and history of the challenged statute, which provides as follows:
"21-4301. Promoting obscenity. (1) Promoting obscenity is knowingly or recklessly:
"(a) Manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or obscene device; or
"(b) possessing any obscene material or obscene device with intent to issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise such material or device; or
"(c) offering or agreeing to manufacture, issue, sell, give, provide, lend, mail, deliver, transmit, publish, distribute, circulate, ...

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