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In the Wind

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Digital Recorders
~ Not Diamonds ~
Are a Girl's Best Friend
Tips, Laws, and Possibilities

This year's news reports have given us two stunning examples of how abruptly and thoroughly digital recorders can flip the balance of power in some violence against women cases. Different from the noise and bulk of old style tape recorders, today's digital recorders are the ultimate in stealth. They're tiny, quiet, and low cost. And even if you don't have a dedicated recorder, most cell phones have digital recording capabilities, putting this powerful technology in the hands and purses of most every woman and girl.

The role of recorders in the following two stories is just the tantalizing tip of possibilities. But as with any powerful tool, before you decide a digital recorder is the right tool for you, you need to evaluate the risks, the laws, and more. We hope this article helps you imagine some of the possibilities, and helps you decide if it can work for you.

The Oksana Grigorieva Recording of Her Abuser

In the first story, which broke in July, 2010, Oksana Grigorieva used her recorder in exactly the way you may have imagined. She recorded her unsuspecting abuser's violent raging's, threats, and admissions. Oksana certainly isn't the first woman who has used her recorder in this way. But given the renown of her husband - he being the iconic film maker, Mel Gibson, of Passion of Christ fame - the recordings went viral, and spotlighted the capability of a recording to provide near unassailable evidence of crimes that so often happen behind closed doors. And, additionally, in this case, the recording provided enough might to pierce the imperial powers of the man and his Hollywood myth.

Without that recording, pretty much no matter what other evidence Oksana may have had, it's likely Gibson and his publicists would have easily patched up the picture. And the victim, like so many other domestic violence victims, would have easily been smeared and ditched in the shadows of doubt. Instead, one simple recording turned the tide. It prompted police to open a criminal investigation against Gibson. And it crippled the Gibson empire, leaving many in the film industry unwilling to work with him.

A Rape Victim's Recording of the Prosecutor

The second story which emerged in October 2010, takes it all a step further. In this story, a rape victim's recording gets to the heart of another major obstacle to ending violence against women, i.e., the widespread unwillingness of so many police and prosecutors to properly enforce the violence against women laws. Now these police and prosecutors have largely succeeded in convincing the public that these failures are not their fault. They say that 'uncooperative victims' are to blame, or that these cases are so often, "he said/she said's", or that it's the 'unique difficulties' of these cases, etc..

It's been very difficult for the public to see that law enforcement failures to enforce the violence against women laws are mostly due to law enforcement's own unwillingness to act, due to their sexist disregard for victims, and to their deliberate indifference to responding properly to these cases. The public doesn't see this because, like violence against women itself, so much of this official misconduct also takes place behind closed doors. And, on top of that, it's law enforcement that controls the message to the outside world.

But the October news release of a rape victim's recording of a prosecutor turned that dynamic upside down. The woman had met with the prosecutor who was refusing to file rape charges against the man she had accused of raping her. At the time of the meeting, the man had already confessed directly to police and had also confessed in a pretext call to the victim. Like so many other exasperated rape victims in her situation, this women was trying to reason against this prosecutor's mind-boggling refusal to file charges. But unlike most other rape victims, she recorded the conversation.

Not only did the recording expose the sexist and cynical thinking behind this prosecutor's refusal to seek justice when there was more than enough evidence for him to do so. The recording shot into the headlines because the prosecutor, Ken Buck, was also a prime contender in impending elections for U.S. Senator from Colorado. This rape victim's recording is considered by many to be a key factor in Buck's resounding defeat, a defeat in which there was an unparalleled 17 point gender gap in the voting between Buck and the winning candidate.

Can a Digital Recorder Work for You?

To be sure, most women aren't dealing with abusers or officials who are as famous as the men in these stories. But that's not the point here. The point is that these stories highlight the awesome power of digital recorders to blast through some of the most stubborn barriers in dealing with violence against women. And whether you need evidence and admissions of an abuser's crimes, or you need proof of an official's discriminatory denial of justice and protection, or even if you just want an accurate record of police and prosecutor's responses to your case, a digital recorder may be just the tool you need.

But, as with any powerful tool, before you decide that making a covert recording is right for you, there are a number of things you should consider.
(For the discussion here, a covert recording is one in which at least one of the persons being recorded doesn't know they're being recorded or hasn't given consent to being recorded.)

1. SAFETY FIRST: Before making a covert recording of another person you should evaluate the physical risk to yourself, and make a decision as to how much risk you're willing to take. Clearly, if the person being recorded discovers they're being recorded, they're likely going to be angry, with a very real chance they may respond violently. Even a telephone recording which separates you physically from the subject can lead to violence down the line if a recording is discovered.

2. KNOW THE LAW: Laws governing electronic recording vary from state to state and country to country. Penalties for making illegal covert recordings can be stiff, so it's important that you look up the laws in your state. Usually a Google search of the words, "(your state) electronic recording laws", will get you to the information you're looking for.

It's also important to read the laws all the way through. Many state laws begin by stating that covert electronic recording is illegal where there is an 'expectation of privacy'. The common and important exceptions, such as allowing victims of violence to make covert recordings to obtain evidence, are often listed at the end of the legal text or in a separate section heading. So make sure to read the whole law.

To go over some of the things you should be looking for in your state law, we use the California laws as an example.

The Law on Recording the Abuser

In California it is against the law to covertly record anyone where that person would have an expectation of privacy. Obvious examples where a private individual would have an expectation of privacy would be in their home, or in a doctor's office, or on the telephone. So it would generally be against the law to record someone in these places without first getting their explicit permission to record.

However, California law, like many state laws, creates exceptions. Specifically, California law says any one can make a covert recording of another if you are gathering evidence of felony violence, or proof of violation of a restraining order. Obvious examples of a perfectly legal covert recording would be recording a conversation or phone call in which you're trying to trap a rapist into talking about the rape, or recording the phone call of a person who is prohibited by a restraining order from contacting you. In those situations it is perfectly legal to make a covert recording even though the person is in a place where they would otherwise have an expectation of privacy.

A gray area arises here immediately in domestic violence cases, because the crime of domestic violence can be a misdemeanor or a felony, and even prosecutors don't always agree on where that line is drawn. Remember Oksana Grigorieva's covert phone recording of her conversation with Mel Gibson? Most perfectly competent prosecutors would want to weigh a lot of other information before making a decision as to whether the threats and admissions made by Gibson on the recording were felony level, misdemeanor level, or no crime at all. It's significant that despite the intense publicity around these recordings which were made in California, law enforcement has responded by opening an investigation against Gibson, and has made no move to open an illegal recording investigation against Oksana.

From this case, and from many other cases in which our domestic violence clients have made covert recordings of their abusers, we have never known police to even question the legality of the domestic violence victim making a covert recording in which she is attempting to gather evidence against the abuser. This isn't to say that it can't happen. But it does seem that, at least in California, police are not expecting domestic violence victims to judge the difference between felony and misdemeanor domestic violence. And that any victim of violence against women in California can feel relatively safe in making any and all forms of covert recordings if she is attempting to gather evidence of her abuser's violence and threats against her. And, just as important, police and prosecutors have been more than willing to use such recordings as evidence in building their cases against the abuser.

The Law on Recording Police, Prosecutors, and Other Law Enforcement Officials

Another key consideration in evaluating your own state laws is this question; Do public officials, such as police and prosecutors, have an expectation of privacy while on-duty, carrying out their public duty. Most all civil liberty experts would agree that public officials have NO expectation of privacy while carrying out their public duties. As such, any one should be completely within their rights to make covert recordings of these officials as they carry out their duties.

This is because, in a democracy, there must be transparency in conducting public business. Indeed, it's the duty of citizens in a democracy to oversee those officials and their activities. So no public official should have an expectation of privacy while carrying out the public's business. It's significant that in the story above of the rape victim recording her prosecutor, despite the obvious fact the prosecutor didn't know he was being recorded, no question was ever raised, in the media coverage at least, about the legality of the women's recording.

On the other hand, because citizens have been increasingly capturing law enforcement misconduct on video and audio recordings, it shouldn't come as a surprise that law enforcement is pushing for ever tighter restrictions on citizen recording of on-duty officers. In fact, there are already a couple states that have passed laws specifically prohibiting recordings of on-duty law enforcement.

Though many legal scholars have called these laws "utter nonsense" and "absurd", and they believe these laws will quickly be overturned, you should know that in some states individuals have been arrested for making videos of police.

.........So, if you want to make a covert recording of police, prosecutors, or other law enforcement officials, there are two strong, but opposing, views to consider.

On the one hand, way too many law enforcement officials seriously endanger women's lives by treating violence against women with contempt and disregard and by willfully denying women justice and protection. It's critical that these officials be exposed and held to account, something that's virtually impossible to do without definitive proof. Covert recording of law enforcement officer's responses to violence against women is one of the few effective tools women have for exposing this kind of law enforcement misconduct. And it should be your right to use it.

On the other hand, you should consider the possibility, rare as it may be, of police retaliating by arresting you if they discover the recording, whether or not the arrest is legal.

One possible half way measure is to go ahead and make the covert recordings of a law enforcement officials handling your case. And instead of making the recording public, you can merely use the recording to write a very accurate accounting of any mistreatment you and your case may receive.

3. KNOW YOUR RECORDER: If, after evaluating the above considerations, you decide to go ahead and make a covert recording, don't let the urgent recording be your first recording. Practice with your recorder ahead of time! Know it's capabilities. Make sure you get the volume you need from wherever you plan to have the recorder. Test it out before hand.

4. HAVE A STRATEGY: If your goal is to simply obtain a record of a meeting or encounter, there isn't much you have to do ahead of time other than to make sure your recorder is working. If, however, you're trying to capture evidence and admissions of crimes or misconduct, it's not likely that anyone's going to get in a conversation with you and magically begin listing their faults. You have to guide the conversation in a way that will elicit those responses. This means giving a lot of thought ahead of time to the kinds of things you can say to set the stage in a way that will draw the other person into the discussion you want.

Police frequently do this to elicit confessions, often inventing a pretext to encourage the discussion they want. For example, police may have a teen girl get on the phone with her grandfather and say something like this, "Grandpa, my mom took me to the doctor today. And we all found out I'm pregnant, so I have to tell my mom what we've been doing." It's not true. The girl wasn't pregnant and hadn't gone to the doctor. It's not illegal to lie. And this particular lie elicits a reaction from the grandfather that makes it undeniable that he's been having sex with his granddaughter. Case closed! A well thought out pretext call frequently closes cases.

At the same time, you cannot make threats, such as saying something like, 'admit you raped me or you'll never see the kids again'. Even if such a statement probably wouldn't be considered illegal, anything the suspect says after hearing this would be considered coerced, and, of course, useless as evidence.

So think through your conversation ahead of time, including thinking through the many different directions the other individual may move the conversation, and how you can guide it back to the information you need.

And we wish you the best, and hope that your recording you make turns the balance of power in your case to justice and safety for you.


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Copyright © Marie De Santis,
Women's Justice Center,


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