Herring Law Group routinely advises our clients to refrain from eavesdropping on spouses, witnesses or others. This includes avoiding reading emails, texts, “snail mail” or any other communications that might be directed to others. These acts can constitute an invasion of privacy, for which financial damages could be ordered. They can also be crimes.
California’s Invasion of Privacy Act makes it a crime to record someone’s conversation secretly, with only a few exceptions. A new published case, In re Trever P., provides a newly-described one. There, the California Court of Appeal unanimously held that the Act allows for the admission of a surreptitious recording by a parent on behalf of a child based on an objectively reasonable belief that the recording will produce evidence of child abuse.
Bob Egelko, of the San Francisco Chronicle, described the Trever P. situation as follows:
“The case dates from June 2015, when the 12-year-old was asked to look after his younger cousin in the child’s home, a trailer in Merced, while his mother was at work.
After the first day of babysitting, according to the mother’s testimony …, the child begged his mother not to leave him with his cousin again, because the older boy told him he would leave him all alone. Concerned the cousin might abandon the child or was ‘being mean to him,’ the mother said she decided to allow a second babysitting session the next day, but hid her cell phone in a cupboard with the recorder turned on to pick up their conversation.
The … recording revealed repeated acts of molestation, ordered by the older boy despite the child’s complaints of pain. A juvenile court judge found the boy guilty of forcible sex crimes and sentenced him to custody and treatment in the state Division of Juvenile Justice.
California has one of the nation’s strictest laws against electronic eavesdropping, requiring consent from both participants to record a confidential conversation. But the law allows one participant to make a secret recording based on a reasonable belief that it will contain evidence related to a violent crime or one of several other specified crimes, such as extortion or bribery. If the recording is judged to be legal, the evidence can be presented in court.
In cases like this one, the court said …, a parent can give such consent for a child who lacks the capacity to do so.
It might be different, [the court added], if a youth was 17 and wanted the information concealed from the parent. But … recording of a conversation related to a serious crime is allowed if, in light of the child’s age and other circumstances, ‘the parent has a good-faith, objectionably reasonable belief that the recording is in the best interest of the child.’”
HLG applauds the ruling as a commonsense interpretation of the Invasion of Privacy Act.