Georgia woman challenges law against sexual devices

acarlson@ledger-enquirer.comMay 16, 2014 

A Sandy Springs woman with multiple sclerosis has filed suit against the city, challenging an ordinance that requires a "prescription, or a medical or scientific reason, to buy a sexual device," according to WFTV.

Further, the ordinance in question classifies all such sexual devices as obscene (excepting those sexual devices which "be construed to include a device primarily intended to prevent pregnancy or the spread of sexually transmitted diseases").

Melissa Davenport, a Kennesaw, Ga., resident, "has sought, and still seeks, to purchase and sell in Sandy Springs sexual devices that are barred for sale. She does not fall within the exceptions set forth (in the ordinance)," according to the suit filed by her attorney in April.

It continues: "By approximately 2003, Davenport and her husband had largely ceased sexual intimacy because the quality of their intimate sexual relations was negatively impacted by the progression of her MS. ...

"While no medical practitioner or psychiatrist has prescribed or advised Davenport to use sexual devices barred by Sandy Spring Ordinance § 38-120(c), she and her husband have found that such devices significantly enhance their sexual intimacy. She credits the devices with saving her marriage."

“(Some people) have this dirty mind about how people are going to use it," Davenport told WFTV. "People really do need devices because they need it for health reasons and to have a healthy intimate life with their spouse."

Davenport's artist husband, Marshall Henry, would also like to purchase sexual devices: "Mr. Henry has also previously used sexual devices in art displays, and he wants to do so in the future. Moreover, he has sought to purchase these devices for his artwork, and he wants to do so again for this purpose in Sandy Springs."

This is where the Constitution comes in: the couple's lawyer charges that the city's ordinance violates the Fourteenth Amendment's Due Process Clause, guaranteeing a right to privacy and liberty; while also contending that the ordinance serves no compelling, or sufficiently narrow, state interest.

"Plaintiffs have a liberty of privacy guaranteed by the Georgia Constitution that includes private, intimate, consensual sexual activity between consenting adults. ... This state constitutional right to privacy is even more extensive and protective of the state’s citizens than its federal analog," the suit argues.

The First Amendment makes a cameo at the suit's end, given Henry's occupation and his contention that the works, which include sexual devices, are not wholly obscene.

The suit asks for a declaration of unconstitutionality, an award of nominal damages to the couple and attorney's fees.

Sandy Springs could not comment on pending litigation, according to WFTV. Its response is expected in June.

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