I just knew that when this opinion mentioned that it involved a 12-year old child babysitting his 4-year old cousin that we'd be talking about something bad.
Admittedly, I didn't know that it'd be this bad. For example, that we'd be talking about an actual tape recording of a molestation. Or that it'd be so bad that this is what he trial judge had to say:
“I have to say this tape recording, Exhibit 2, is some of the most sickening
evidence I've heard. I have presided over adult jury trials involving
murders with gory evidence and sexual abuse cases with horrific testimony
from the victims, but actually hearing the acts being committed, as is the
case here, and Trever's callous and sadistic treatment of Ralph is very
disturbing. He seems to take pleasure out of hurting Ralph, and threatening
to leave him and spanking him. [¶] There are numerous instances of
Trever telling Ralph to bend over and open his butt, that he was going to
stick it in, and for Ralph to keep it in; and to do it just one more time, over
and over; or requesting Ralph to 'suck it' and threaten[ing] to leave him
alone if he didn't and even threatening to kill him.”
Yeah. Not good. Especially when you're listening to this stuff exactly as it happened.
On the intellectual front, however, I will say that the opinion is definitely interesting, and would the underlying dispute would also make for a decent law review article. The issue is whether a parent can "consent" on behalf of her minor child to secretly record communications with someone else. Usually you have to get consent of both sides to a communication, or it's a felony. But in certain circumstances, you only need one party's consent; e.g., when you're trying to get evidence related to extortion, crimes of violence, etc.
But here, neither party to the communication gave consent, or even knew that things were being taped. Yet most courts, including this one, hold that the parent's consent "on behalf of" the minor child was nonetheless sufficient to constitute "consent" within the exception.
There's nonetheless a huge fight about how far this goes. What about "consent" on behalf of a 17-year old child (who, again, doesn't know or want the communication to be recorded)? Or "consent" by a noncustodial parent? Or "consent" by other types of agents; e.g., a principal granting "consent" for his agent (attorney, employee, etc.) to secretly tape? Are those valid too?
Not relevant here, since this is an otherwise straightforward "four year old child" type of case. But just how far does the doctrine of "vicarious consent" go? (And does it even make sense at the outset, or is it inconsistent with the text of the statute in even its "purest" form?)
Interesting stuff.
