HOUSTON – When considering the small but growing phenomenon of sex doll brothels (or “sex robot” brothels as some have termed them), I think because of the descriptor “brothel” being used, a lot of people leap to assuming local governments which want to prohibit such businesses popping up in their area would do so by enforcing prostitution and pandering laws against them.

The problem with this notion is that under every prostitution and pandering statute of which I’m aware, the statutory definition of the crime specifically involves “persons” – and a sex doll or robot, no matter how advanced and feature-laden it may be, cannot reasonably be considered a person.

In Texas, for example, the statutory definition of prostitution states “a person commits an offense if, in return for receipt of a fee, the person knowingly offers to engage, agrees to engage, or engages in sexual conduct; or solicits another in a public place to engage with the actor in a sexual conduct for hire” or “if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly offers to engage, agrees to engage, or engages in sexual conduct, or solicits another in a public place to engage with the actor in sexual conduct for hire.”

On its face, this definition seems to preclude the possibility of charging a business or individual with prostitution for renting out sex dolls to their customers because, again, a doll is not a person.

So, what’s a poor, morally-panicked government to do, if it wants to prevent a sex doll brothel from opening shop on Main Street? In Houston, the City Council’s answer has been to amend its ordinance regulating adult arcades and adult mini-theaters, such that the revised ordinance will cover such brothels.

Prior to being amended last month, the ordinance’s definition of “arcade device” was: “Arcade device shall mean any coin- or slug-operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment, that is intended for the viewing of five or fewer persons in exchange for any payment of any consideration.”

In early October, the City Council added to that definition this line: “Arcade device shall also mean an anthropomorphic device or object that is utilized for entertainment with one or more persons.”

The ordinance has also been amended to include the following language: “It shall be unlawful for the owners or operator and it shall also be unlawful for any agent or employee present in an adult arcade or adult mini-theatre to knowingly allow or permit any act of sexual intercourse, sodomy, oral copulation, indecent exposure, lewd conduct or masturbation with or without an individual or an arcade device to occur in the adult arcade or adult mini-theatre or to knowingly allow or permit the adult arcade or adult mini-theatre to be used as a place in which solicitation for sexual intercourse, sodomy or oral copulation occur.”

So, will Houston’s move work to forestall sex doll brothels opening in the area? Is the revised ordinance vulnerable to legal challenge?

It’s always difficult to predict how a prospective legal challenge might play out (especially when it’s merely a hypothetical one), but historically, there’s a reason why local governments have turned to ordinances like the one just amended in Houston to legislate morality: It’s an easier and more assured path than writing a new statute regulating speech or behavior directly.

“Local governments across the nation have looked to licensing and zoning ordinances to enforce morality and impose barriers for adult-oriented businesses,” attorney Larry Walters told YNOT. “In some cases, these ordinances have been stuck down as a violation of the First Amendment or Due Process. In other cases, they have been upheld based on a claimed governmental interest in combatting ‘secondary effects’ of adult businesses. Whether modern-day adult businesses actually cause such secondary effects is a hotly-contested issue.”

Still, regardless of whether adult businesses truly create the adverse secondary effects governments claim they do, U.S. courts have been far more deferential with respect to zoning ordinances and the like than they are towards statutes directly regulating or abridging materials and expression protected by the First Amendment.

“It makes sense that Houston would try to regulate sex doll brothels under licensing and zoning ordinances, as opposed to relying on some claim that prostitution laws are violated,” Walters said. “There are numerous problems with that theory from a legal and constitutional standpoint.”

Of course, wherever one might stand on the question of sex doll brothels, adult arcades, or any other manner of adult business, there’s another principle at issue in the debate which often goes unmentioned.

“The bigger question is whether we want the government regulating consensual human sexual activity at all – particularly when there is no ‘victim,’” Walters noted.

Clearly, the Houston City Council thinks the answer to that question is yes.