Court upholds mom’s secret recording
California law makes it a crime to record someone’s conversation secretly, with a few exceptions — and one of them, a state appeals court says, allows a parent to use a hidden cell phone to record her child’s talks with a babysitter suspected of abuse.
A mother’s recording led to the conviction of a 12-year-old babysitter for molesting his 4-year-old cousin. The defense lawyer argued that the recording was illegal because neither of the speakers had consented.
But the Fifth District Court of Appeal in Fresno said Monday that a parent who reasonably fears harm to her child, particularly a young child, can consent to a secret recording on the child’s behalf. State law normally requires the consent of both parties to a conversation, but allows consent by one person who reasonably suspects the other of a serious crime.
Lawmakers “could not have intended to deem a parent a criminal for eavesdropping on his or her child’s conversation under conditions like these,” Justice M. Bruce Smith said in the 3-0 ruling, the first on the issue by a California court.
The case dates from June 2015, when the 12year-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, as quoted by the court, 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 court said 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 Monday, a parent can give such consent for a child who lacks the capacity to do so.
It might be different, Smith said, if a youth was 17 and wanted the information concealed from the parent. But he said 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.”
A lawyer for the babysitter could not be reached for comment.