Loud Sex Could Land You in Jail

To borrow a line from Avenue Q, "You can be as loud as the hell you want when you're making love."

Of course, I'm sure the neighbors to people having ear-splitting sex might disagree with that statement. As someone who has lived in an apartment or dorm almost my whole life, I too have a low opinion of the construction industry and the flimsy barrier considered a bedroom wall. (Luckily, I also like loud, drowns-out-the-sex-next-door music.) Turns out, the courts also disagree: a recent ruling declared that you can be as loud as you want when making love -- as long as you don't mind the police searching your home.

Police received a 911 call complaining of screams from Brian McGacken's home -- I assume the caller actually thought a crime was being committed, and wasn't just grumpy over the noise disturbed -- and came a-knockin' on his door. McGacken and his girlfriend both reported loud sex, not assault, was the culprit. When police entered the home and went upstairs, they smelled marijuana, and commenced a search turning up weed, plants, and drug paraphernalia.

Now, McGacken isn't necessarily the brightest bulb, since he went upstairs for his ID, knowing there was visible weed lying around, and didn't object when an officer followed him. However, not objecting isn't the same as giving permission, and McGacken might not have been aware that he could object. In fact, McGacken argued in court that the officer was in the wrong to enter and search his private residence. But he was sentenced to 10 years in jail anyway, the ruling finding that "While loud sex may have been a plausible source of screaming, that explanation was not so reliable that the police acted unreasonably in investigating further." Hmm.

Now, I'm not going to get into the problems with our drug laws and the criminalization of weed, since that's something our Criminal Justice blog does very well. However, I am concerned about the privacy implications.

What makes sense to me in this kind of case is questioning the man and woman separately, to make sure its not a domestic violence situation where the victim would be afraid to speak in the presence of the abusive partner. (This kind of situation happened to a friend once.) And I understand the desire to make sure everything is really safe. Yet, if every time someone has innocent loud sex, they risk search of their home and arrest on completely unrelated grounds to the possibility of violence occuring, that has some alarming implications for privacy rights.

Although all people have the right to privacy and to be free from unreasonable search and seizure, the frisky couple don't even have to have an illegal items in their home for this to be a serious concern. For example, just yesterday, fellow blogger Brandann Hill-Mann wrote about a lesbian sergeant discharged under Don't Ask, Don't Tell when police spotted a marriage license through her window and reported it. (The ACLU is now fighting this violation.)

This ruling seems seems to put a lot of, ah, very happy couples at risk of having their privacy violated. That's not sexy at all.

Photo credit: kyz