By Prof. Raphael Nyarkotey Obu & Martina Akusika Mensah(Esq)
Scanning through Kofi Kumado’s book on Introduction to The Law of Torts in Ghana (2nd Edition) Page 95 on Private Nuisance, I chanced on an interesting question he asked on excessive noise during sexual intercourse and the legal implications.
This question stems from the definition of Private Nuisance. Indeed, private nuisance is defined in Bamford v Turnley 1860 as “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land.”
Kofi kumado held the view that the crux of nuisance then is unreasonableness of a conduct. Consequently, he said, the problems in nuisance really turn on reasonableness. For instance, in determining the reasonableness, the Courts look at both the defendants conduct and its effect on the plaintiff. He further explained that when interference as alleged has to do with a plaintiff’s enjoyment, the surrounding circumstances are relevant, but not so relevant when the alleged interference is with material injury to property. Some common forms of private nuisance are:
- noise-excessive tolling of church bells;
- Vibrations;
- Pestilential smells and
- Escaping fumes from factories.
As private nuisance represents a balancing of conflicting interests (eg. Radio music, taxi horns), and the courts are principally concerned with mutual adjustment of rights. The challenge we faced today is that, we are living in close communities where one has to put up with a reasonable degree of nuisance.
The Courts and Loud Sex Noise
The courts have rarely been asked to rule in a case where the sound of female sexual rapture is a legal issue, but it has happened in some jurisdictions. In the Ghanaian Courts, we are yet to witness any of such case. We however, explore some cases in other jurisdictions which could have persuasive effect.
In October 2007, at the magistrates’ court in Ipswich, Queensland, Australia, the humdrum proceedings were interrupted at one point by the sound of a gasping female voice in an advanced state of excitement.
The voice was the hi-fi ringtone on the phone of a man in the public gallery. As the sounds of ecstasy became progressively louder the court proceedings froze. The man with the extraordinary ringtone fumbled desperately to turn off his phone. He was identified and told he could be held in contempt of court and imprisoned, although the magistrate ultimately exercised mercy. One missed call, one missed cell.
Cases
In Uganda, there is a report by the LuciPost(2019) of acouple in Meru , arrested and charged for noisy sex. According to a court hearing, three people, 24-year-old Chacha Mwiti and 31-year-old Joan Makokha were having the loud sex claiming they were stuck while Magoola Twaha, a 27-year-old Ugandan man who posed as a witch doctor, pretended to be helping them out.
In Australia, another first case is reported by The Advertiser (2012) of Colin and Jessie who will have to give quiet sex a go or perhaps issue headphones to their neighbors.They were charged after repeated complaints about their passionate but noisy love-making, which prompted police to force to step in to give their neighbors some peace and quiet. The couple became the first to be charged with offences under the Environmental Protection Act – as a direct result of their noisy sex.
In Cartwrights bedroom case(2009),Caroline Cartwright, 48, was remanded in custody and later charged with three breaches of her Asbo( anti-social behavior order)in just 10 days.The four-year order was imposed by magistrates in Sunderland on April 17 and prevented Cartwright “making excessive noise” anywhere in England. However, Houghton le Spring Magistrates Court heard police arrested her on April 18, on April 22 and again on April 26 after reports from neighbors she was flouting the ban with husband Steve. She was subsequently charged with three counts of breaching her Asbo by making excessive noise that can be heard by neighbors.The court heard that her neighbor Rachel O’Connor called the police after hearing Cartwright shouting and screaming for 10 minutes during lovemaking on the morning of March 14.
The next day O’Connor’s partner Vince Wilson also called police after the defendant could be heard singing at the top of her voice to dance music blasting out from her terraced house.
The court was told police officers, who attended the neighbors’ flat, heard 20 minutes of loud music and singing before arresting Cartwright.Prosecutor Claire Ward said neighbors had complained to police on three occasions about early morning noises of shouting, moaning, groaning and a bed banging against the wall coming from the Cartwrights’ home.
Cartwright was convicted for five breaches of an abatement notice and fined a total of £515, and magistrates also imposed the Asbo.
Another case was reported by Gena Kaufman(2014) of Romeo Artemio Lori, a 42-year-old man in Italy who was also jailed after his neighbors filed a civil lawsuit over the loud noises of his lover’s screaming, which disturbed the peace and “the building’s decorum.” The charge against him was actually for stalking, but he argues that he was punished for being too good at sex. He was found guilty and jailed for six months.
They were further ordered to have sex only in the daytime after the man’s wails of ecstasy provoked complaints from neighbors. Retirees next door, who claimed the grunts equaled decibel levels of a jackhammer, will now be able to sleep soundly after a Rome judge imposed a sex ban from 11 p.m. to 7 a.m. on a married couple.This is the third case of roof-raising sex to hit Italian courts in a year; all three judges have imposed a blackout on sonorous love making at night.
In Birmingham city council v Gemma Wale(12 May, 2015), the respondent, Wale was given a two-week prison sentence after a civil court judge concluded that she had breached the order by screaming and shouting while having sex at a level of noise that annoyed a neighbor.The judge Kelly concluded that Wale had breached an antisocial behavior order. She said Birmingham city council took legal action after a neighbor complained.Kelly said the antisocial behavior order had barred Wale from making loud sex noises and from causing nuisance by playing loud music, shouting, swearing, making banging noises, stamping and slamming doors.
The judge concluded that she had also breached the order by arguing with her boyfriend, swearing at a neighbor, “banging around the house” and “running around in the property”. She imposed separate two-week jail terms on Wale for each breach but said all terms would run concurrently.
The judge indicated that Wale lived in a property owned by Birmingham council and said she had heard evidence from a council housing officer and one of Wale’s neighbors. Kelly said a neighbor had complained that at about 5am on 29 January that paragraph 3 of the order had been breached. “Gemma started screaming and shouting while having sex, which woke us up,” said the neighbor. “This lasted 10 minutes.”
The judge concluded: “I am satisfied that during the course of the early hours of 29 January 2015, at around 5am, the defendant was guilty of screaming and shouting whilst having sex at a level of noise which caused nuisance or annoyance to (a neighbor).”
Unreasonableness
The question is how much is unreasonable in nuisance in bedroom sound?In Cartwrights case, the local council recorded the noise at 47 decibels which is more than the 45 decibels. The EPA states:
Noise levels for various areas are identified according to the use of the area. Levels of 45 decibels are associated with indoor residential areas, hospitals and schools, whereas 55 decibels is identified for certain outdoor areas where human activity takes place. The level of 70 decibels is identified for all areas in order to prevent hearing loss.
We state that it’s not illegal to have consensual sex, but it can also be heard of as nuisance by neutral bystander(s). For Cartwrights case, she appealed claiming that she is unable to stop the loud shouting and screaming she makes during lovemaking with her husband Steve. However, she lost the appeal against an order banning her from making loud noises during sexual activity.The British Court said she can’t have loud sex. Hence, we urged everyone to keep it safe and keep it down, as there are possible legal implications of loud noise during sex.It will be interesting to explore the law on this in Ghana.
The authors: Prof. Raphael Nyarkotey Obu is a law student and Martina Akusika Mensah is a Lawyer and a Gender Activist. E-mail: [email protected]
