THE WOMAN’S HUSBAND pushed her down on her bed and placed a pillow over her face. He threatened her and the couple’s young child, according to court findings granting the woman a restraining order.
The woman, who lives on the South Shore, recorded her husband without his consent, taping phone conversations and conversations inside their home using an app on her phone. She says, according to court documents, that it was an attempt to protect herself and her child from his aggression.
The husband went to a magistrate and applied for a criminal complaint against her for illegally recording him. Under Massachusetts state law, both parties must consent for a conversation to be recorded. A clerk-magistrate in Plymouth District Court found probable cause that the woman committed a crime, and she faced criminal charges for wiretapping.
It was up to prosecutors whether to move forward with the charges. Tara Miltimore, a spokesperson for the Cape and Islands District Attorney’s office, which prosecuted the case because of a conflict of interest at the Plymouth District Attorney’s office, said prosecutors recently reached an agreement with the woman that after six months on probation, the charges would be dropped.
As the Legislature considers whether to update the state’s wiretapping statute, the woman, who is not being named because she is a victim of domestic violence, wants legislators to consider a carveout that would protect victims of domestic violence from being prosecuted for recording their abuser.
She has been talking to Sen. Patrick O’Connor, a Weymouth Republican, who said he hopes a carveout from prosecution for domestic violence victims can be added to one of the public safety bills lawmakers are currently considering. O’Connor said the state’s wiretapping law is outdated. “It seems to be only working right now to penalize people who more than likely shouldn’t have been [penalized],” O’Connor said. “If a person records something like that, it’s traumatic enough that something like that is happening. Then to be penalized for that is very difficult. I can’t even imagine the struggle that that must bring on top of being a survivor of domestic violence.”
O’Connor said he would like to see the law take into consideration when someone is recording another person to obtain proof of wrongdoing. “There should be some streamlined understanding between the courts and the general laws as far as what may cross the line and what doesn’t cross the line,” O’Connor said.
Toni Troop, a spokesperson for the anti-domestic violence coalition Jane Doe Inc., said she has occasionally heard of this issue arising, but the coalition has not yet explored it thoroughly enough to take a position.
The state’s wiretap statute has already been subject to some scrutiny, but mainly because of how it applies to the police, not private citizens. Currently, law enforcement can only use wiretaps to prosecute crimes related to organized crime. Gov. Charlie Baker proposed expanding the wiretapping statute to other serious crimes, like murder, rape, and possession of explosive devices. The Judiciary Committee recently sent Baker’s bill to study, effectively killing it for this legislative session.
“Generally, there was pretty strong opposition to expanding the wiretapping law from a lot of civil liberties groups,” said Senate Judiciary Committee Chair Jamie Eldridge.
Both House Judiciary Committee Chair Michael Day and a Baker spokesperson noted that Baker’s bill focused exclusively on law enforcement, not on the section of the law that requires two party consent for private citizens to record private communications.
Baker’s office would not comment on the specifics of this case or the proposed policy of exempting domestic violence victims from prosecution under the wiretapping law.
One bill that is still pending is one Baker filed to expand the use of “dangerousness hearings,” where a judge decides whether someone can be held in jail pre-trial because they pose a danger. Baker’s bill would apply dangerousness hearings to more offenses, including more cases involving domestic violence. Baker has been holding events with domestic violence survivors to push for the bill’s passage.
O’Connor said he hopes a change in law could be added to either the governor’s dangerousness bill or the wiretapping bill, whichever one moves forward. “The fact that we still have these wiretap laws in place that can be used against victims of domestic violence but can’t be used against actual criminals is because of how antiquated the wiretapping laws are,” O’Connor said.