September 7, 2017
Trever P. was 14 years old and was babysitting his four-year-old cousin when, the State of California alleges, he engaged in unspeakably depraved acts with the young child. The primary evidence against him was an audio recording, surreptitiously made by the victim’s mother, of the conversation Trevor and the victim had during the offenses. Trever P. argued that the recording was inadmissible, since California law requires that every party to a recording consent to being recorded. The juvenile court disagreed and, recently, the appellate court affirmed.
One of the main exceptions to the “all party consent” rule allows a person to obtain evidence of a violent felony, extortion, bribery or kidnapping via a secret recording. At issue in the In Re: Trever P. case wasn’t whether a person involved in the conversation can make a secret recording, but rather, whether a parent can consent on behalf of their child and make a secret recording of the child and a babysitter.
According to the Fifth District Court of Appeals, a parent can consent to a recording on behalf of his or her minor child. The court found it rather significant and unlikely that the California legislature meant to foreclose a parent’s ability to consent on behalf of their child to a secret recording when abuse is suspected on the part of a child’s caregiver. “The key to the analysis,” the court wrote, “is that the Legislature could not have intended to deem a parent a criminal for eavesdropping on his or her child’s conversation under conditions like these — and if the conduct is not unlawful under the statute, the statute’s exclusionary provision is not triggered. Rejecting the doctrine would lead to a consequence that is absurd and exceedingly unlikely to have been intended by the Legislature.”
As “nanny cams” become more and more universal, I have to believe that no babysitter will be able to maintain that he or she has an expectation to privacy in what happens in the home when the parents are away.