Q A nice family moved in next door last year and the police have been there a few times. I did not want to be nosy but recently heard some scary sounds coming from their house when the windows were open so I called 911. I texted her later and apologized for interfering but expressed concern for her safety. She came over, arm in a cast and thanked me. She then told me what her marriage is like and how she recorded him once but when the lawyers learned she recorded him and his threats without his permission, she was told she could go to jail for wiretapping him illegally so she had to drop the case. I am planning to testify about what I heard so she has some evidence this time.

I am really struggling to understand how this woman’s husband can beat her up like that and she could be arrested for trying to get evidence of his abuse when he was threatening her. Is she right? Or was she just being bullied by his lawyers?

A Unfortunately, the wiretap statute is known to be used against anyone who makes a recording of another person without the other person’s knowledge and consent.

Many people believe when their spouse is behaving badly, either in a situation of domestic violence or during a difficult parenting transition, the answer is to secretly record the interaction so they have proof of the bad behavior. In an instance of domestic violence, such a secret recording has been used against the person making the recording because it is technically a violation of the wiretapping statute. When that is pointed out, oftentimes the victim recants their statements or refuses to cooperate with prosecution of an assault and battery or withdraws their request for a restraining order to avoid getting in trouble.

There is currently a bill pending in the legislature filed by Senator Patrick O’Connor who is attempting to correct this problem. Sen. O’Connor’s bill would provide a discrete carveout for recordings made to create evidence of threats, harassment or other crimes in relation to certain family law matters such as divorce, child custody matters, restraining order cases or harassment prevention orders. If passed, this new exception should have a real impact for some victims of domestic violence — particularly if they are able to record the abuse and threats.

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