The comp­trol­ler of the Cus­toms and Ex­cise Di­vi­sion has been giv­en two months to de­vel­op clear guide­lines for the im­por­ta­tion of adult toys.

High Court Judge West­min James is­sued the di­rec­tive on Wednes­day as he up­held a law­suit from adult store own­er Ron­na Zamo­ra Ro­driguez, of In­ti­mate Af­fairs, whose ship­ments of adult toys were seized by cus­toms of­fi­cers be­fore be­ing re­leased.

Jus­tice James said, “The cur­rent state of af­fairs, where im­porters have no way of know­ing which sex toys will be seized and which will not, is un­ten­able.”

He said that the un­cer­tain­ty had led to an ex­ces­sive bur­den on ju­di­cial re­sources and had fi­nan­cial costs for im­porters and the state.

“Al­low­ing such am­bi­gu­i­ty to per­sist in this court’s mind is ir­ra­tional and con­sti­tutes a vi­o­la­tion of an im­porter’s right to the pro­tec­tion of the law,” he said.

Stat­ing that the guid­ance would as­sist both the pub­lic and Cus­toms of­fi­cials, Jus­tice James said, “The guid­ance should af­firm that adult sex toys are not, in and of them­selves, ob­scene or in­de­cent, and should set out the cri­te­ria by which the de­fen­dant will de­ter­mine whether a par­tic­u­lar sex toy falls with­in the de­f­i­n­i­tion of ‘in­de­cent’.”

Ro­driguez, through her le­gal team led by at­tor­ney Kiel Tak­lals­ingh, filed the case af­ter her ship­ments were seized be­tween April and June 2023.

At the time of the seizure, Ro­driguez was told that the goods were pro­hib­it­ed as they close­ly re­sem­bled male or fe­male gen­i­talia.

When the case was at a pre­lim­i­nary stage, the di­vi­sion agreed to re­lease all the seized adult toys ex­cept two “pipedream ex­treme” sex toys.

De­spite the par­tial con­ces­sion, Ro­driguez still con­tin­ued her case as she claimed that the di­vi­sion had a prac­tice of mak­ing con­tra­dic­to­ry de­ci­sions in re­la­tion to adult toys de­spite sev­er­al land­mark law­suits over the is­sue be­ing de­ter­mined be­tween 2019 and 2020.

Jus­tice James agreed that her case was not ren­dered aca­d­e­m­ic based on the re­lease of the ma­jor­i­ty of the items.

“The Court finds that the ex­is­tence of mul­ti­ple au­thor­i­ties on this is­sue does not ren­der the mat­ter aca­d­e­m­ic; rather, the re­cur­ring na­ture of the is­sue un­der­scores its jus­ti­cia­bil­i­ty,” he said.

“The fact that the mat­ter is once again be­fore the Court demon­strates that there re­mains a gen­uine, live con­tro­ver­sy re­quir­ing res­o­lu­tion,” he added.

Deal­ing with the di­vi­sion’s han­dling of Ro­driguez’s ship­ments, he not­ed that it failed to ex­plain why some of the items were re­leased as they were not deemed to be pro­hib­it­ed un­der Sec­tion 45(1)(l) of the Cus­toms Act and the oth­ers were re­tained.

The leg­is­la­tion pro­hibits the im­por­ta­tion of in­de­cent or ob­scene prints, paint­ings, pho­tographs, books and ob­jects.

He stat­ed that a rea­son­able de­ci­sion-mak­er would not have made a sim­i­lar de­ci­sion.

“The Court finds that these items were no dif­fer­ent from oth­er adult toys rou­tine­ly cleared through Cus­toms, and no jus­ti­fi­ca­tion was pro­vid­ed for their con­tin­ued de­ten­tion,” Jus­tice James said.

He agreed with Ro­driguez’s lawyers that a lack of a clear pol­i­cy is un­law­ful as it con­tra­venes the prin­ci­ples of trans­paren­cy and le­gal cer­tain­ty.

As part of his judg­ment, Jus­tice James or­dered the state to pay Ro­driguez’s le­gal costs for pur­su­ing the case.

Ro­driguez’s case came af­ter High Court Judge Ricky Rahim de­ter­mined three sep­a­rate cas­es over the im­por­ta­tion of adult toys be­tween 2019 and 2020.

In Ju­ly 2019, Jus­tice Rahim ruled in favour of busi­ness­man and sex ther­a­pist Giri­raj Ram­nanan, known as Dr Raj, in his chal­lenge against the di­vi­sion’s fail­ure to in­sti­tute for­fei­ture pro­ceed­ings over the seizure of a ship­ment of adult sex toys he im­port­ed in 2017.

Sev­er­al months lat­er, Jus­tice Rahim ruled in favour of an e-com­merce con­sul­tant, who sued af­ter his life-sized fe­male sex doll was al­so seized un­der the di­vi­sion’s then pol­i­cy pro­hibit­ing the im­por­ta­tion of sex toys, which close­ly re­sem­bled male or fe­male gen­i­talia.

In that case, Rahim was asked to con­sid­er whether the blan­ket ap­pli­ca­tion of a pol­i­cy pro­hibit­ing the im­por­ta­tion of adult toys with­out a more in-depth analy­sis of the dis­put­ed prod­uct by a cus­toms of­fi­cer, was trans­par­ent and law­ful.

In 2020, Jus­tice Rahim up­held a law­suit from so­cial and po­lit­i­cal ac­tivist Ravi Bal­go­b­in Ma­haraj on the di­vi­sion’s then pol­i­cy on adult toys.

While Ma­haraj’s case was sim­i­lar to the con­sul­tant’s, his (Ma­haraj) dealt with the over­all le­gal­i­ty and con­sti­tu­tion­al­i­ty of the pol­i­cy and not the method of clas­si­fi­ca­tion.

In his judg­ment in Ma­haraj’s case, Jus­tice Rahim ruled that the pol­i­cy was like­ly to con­tra­vene cit­i­zens’ right to the en­joy­ment of prop­er­ty and re­spect for pri­vate and fam­i­ly life.

“His ev­i­dence demon­strates that the ef­fect of the im­ple­men­ta­tion of the pol­i­cy will be to de­prive not on­ly he and his wife of the use of such items but al­so oth­ers who may use such for a va­ri­ety of law­ful rea­sons,” Jus­tice Rahim said.

Ro­driguez was al­so rep­re­sent­ed by Ste­fan Ramkissoon, and Naveen Maraj. The Comp­trol­ler was rep­re­sent­ed by Ste­fan Jaikaran, and Kristyn Lewis.