McDade v. State: A Clarion Call for an Exception to Florida’s Secrecy of Communications Act
The law lives and breathes words and, on occasion, applying the plain language of those words to specific facts sounds a clarion call for change. On December 11, 2014, the Florida Supreme Court held in McDade v. State, 154 So. 3d 292 (Fla. 2014), that a defendant accused of child molestation has an expectation of privacy in conversations between him and his victim taking place in their shared residence where he asked her to have sex with him and also alluded to his prior acts of sexual abuse. In doing so, the court concluded that the Secrecy of Communications Act’s (SCA), F.S. Ch. 934, et seq. (2014), plain language barred the trial court’s admission of a recorded conversation between McDade and his victim into evidence. The decision may surprise some, especially when one considers that the victim’s actions in McDade also constituted a crime under the SCA and authorized the criminal defendant in that case to sue the victim under the statute’s civil cause of action.1
After McDade,
the legislature endeavored to address the SCA’s shortcomings . On January 28, 2015, Sen. Lizbeth Benacquisto from Ft. Myers sponsored S.B. 542 in response to McDade and Rep. Carlos Trujillo and Rep. Jared Moskowitz sponsored a companion bill, H.B. 7001, in the House (SCA Amendment). The SCA Amendment passed following a House vote on April 24, 2015, and Gov. Rick Scott signed it into law on May 22, 2015.2 The SCA Amendment has an effective date of July 1, 2015. It allows recordings under the SCA in cases involving an “unlawful sexual act or an unlawful act of physical force or violence against a child.”3
The SCA Amendment, however, is less than perfect and will affect how the SCA is applied at the investigative level and litigated in civil and criminal cases. First, it does not allow a parent or legal guardian of a minor to record the alleged perpetrator of the abuse. Second, it only allows a child “under the age of 18” to undertake the recording thereby ignoring significant scientific research on “delayed recall” and the fact that in McDade itself there was a six-year delay between the beginning of the abuse and the date of the recording. The legislature should attempt to address these issues in a future session or risk frustrating the SCA Amendment’s policy aspirations.4
The Secrecy of Communications Act
In order to evaluate McDade and the efficacy of the SCA Amendment, one must first understand the SCA and the legislative policy choices it embodies.5 Generally, “[t]he protection of a person’s general right to privacy is left largely to the states.” The SCA is a legislative creature that ensconces a strong policy favoring privacy in communications and impacts the presentation of evidence in a wide range of contexts.6 In furtherance of those preferences, the statute has an exclusionary rule that applies in criminal and civil cases at considerable expense to truth seeking, impeachment, and the accurate presentation of evidence.7 While those sacrifices certainly have merit in the criminal context where the state’s power looms large and the exclusionary rule’s deterrent effect portends corrective force in future criminal prosecutions, they are in no way unassailable and are susceptible to criticism in circumstances such as those in McDade and beyond.8
At its heart, the SCA prevents, with certain exceptions, the interception and use of any “oral communication” obtained without court authorization or absent the consent of all parties to the conversation. The statute defines an “intercept” of an “oral communication” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”9 It defines “oral communication” as one that is “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.”10 Florida courts have established a two-part test for determining whether an expectation of privacy is reasonable. First, the speaker must have a subjective expectation of privacy.11 Second, the expectation of privacy must be one which society is prepared to recognize as reasonable.12 An improperly intercepted oral communication, and any evidence derived from it, cannot be admitted into evidence at “ any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof.”13 The SCA also criminalizes violations of the statute and provides for a private civil cause of action.14
Prior to the SCA Amendment, exceptions to the SCA’s prohibitions were found in §934.03(2)(a)-(j), which include what is commonly referred to as the “law enforcement” exception. Pursuant to that exception, “it is lawful…for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.”15 It is this exception that features prominently in SCA cases and prosecutions for child-sexual abuse. And, in McDade, it was the victim’s failure to fall within this exception that barred the recordings under the SCA.
Factual Background of McDade v. State
In McDade, the defendant was charged with various sex crimes after his then 16-year-old stepdaughter reported that he had been sexually abusing her since she was 10 years old. The victim, whose immigration status was uncertain, alleged that McDade threatened that the authorities would return her and her mother to Mexico if she reported his conduct. The victim claimed that on prior occasions she reported the abuse to several people, including her mother, doctor, and two church ministers. The mother herself admitted that the victim had reported the abuse to her, but “[t]he mother adamantly did not believe her daughter,” and, when pressed about her accusations, the victim “recanted on more than one occasion.”16 The victim stated that she retracted her claims out of fear of having to return to Mexico. 17 The court noted that “[p]erhaps because of those retractions, no one reported her claims even though any person who has reasonable cause to suspect child abuse must report it [pursuant to F.S. §39.201 (2012)].”18
It is against this backdrop that the victim, in April 2011, used her boyfriend’s mp3 player, approached McDade while both were in their shared residence, and recorded two conversations with McDade that she promptly turned over to police. As the court described it, “[s]he was essentially conducting her own investigation hoping to prompt McDade into making incriminating statements that she could secretly record as evidence of abuse.”19 And those recordings “supported the victim’s testimony that McDade would regularly ask her to have sex with him after school.”20 Specifically, in the recordings McDade asked her to have sex with him, stated that if she refused to do so he would get physically sick, and indicated that he was doing her a favor by not telling the victim’s mother because she would take the victim back to Mexico.21 The jury convicted McDade of various sex crimes and sentenced him to, among other things, two life sentences.22 Given the victim’s prior recantations, one could reasonably argue that the jury’s verdict in McDade illustrates the power of recordings to corroborate, and, therefore, enhance the trier of fact’s comfort with the reliability of victim testimony in sexual abuse cases. It is this consideration, among others, that makes the SCA Amendment, despite certain shortcomings, a decent piece of legislation.
Second District Court of Appeal’s Opinion in McDade
On appeal, the Second District Court of Appeal affirmed the trial court’s admission of the recordings, reasoning “that the narrow factual circumstances of this case do not fall within the statutory prescription of chapter 934.”23 The Second District reasoned that “the statutory proscription [on recording oral communications] of chapter 934 only applies where the person uttering the communication has a reasonable expectation of privacy in that communication under the circumstances.”24 The court relied on State v. Incirriano, 473 So. 2d 1272 (Fla. 1985), a case involving an audio recording made in the victim’s office that captured the commission of a murder, stating:
As in Inciarrano , this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded McDade soliciting her for sexual acts, as he had done for years. And though the conversation took place in McDade’s home, it was also the victim’s home. Considering these circumstances and consistent with the analysis and holding in Inciarrano, we conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable.25
In sum, the court reasoned that the defendant had to possess a reasonable expectation of privacy in the recorded statement’s content, and that the context surrounding those statements was not dispositive to the analysis. The majority’s reliance on Inciarrano stoked concern with some of the judges.26 That concern would prove well-placed because the Florida Supreme Court overturned the Second District and rejected the majority’s reliance on Inciarrano.
The Florida Supreme Court’s Opinion
The Florida Supreme Court’s opinion in McDade refocused the SCA’s “expectation-of-privacy” analysis on the context in which the statements were recorded and rejected a categorical rule “that persons involved in criminal activities have no justified expectation of privacy in conversations related to those activities.”27 McDade also reestablishes the primacy of a plain-language analysis with respect to the SCA and restricts efforts to limit the statute’s application beyond its express exceptions.
The court’s opinion first noted that none of the SCA’s 10 exceptions “allow for the interception of conversations based on one’s status as the victim of a crime.”28 It then determined that McDade uttered his statements under circumstances “exhibiting an expectation that such communication[s] [were] not subject to interception under circumstances justifying such expectation” within the meaning of §934.03(1)’s definition for “oral communications.” In reaching that conclusion, the court noted that the conversation between McDade and his stepdaughter occurred in McDade’s bedroom located in their shared residence.29 In rejecting the Second District’s reliance on Inciarrano to conclude otherwise, the court examined the context surrounding the statements in Inciarrano, stating that Inciarrano ’s holding is a “narrow holding based on the view that a trespasser cannot have a justified expectation that his utterances in the premises where he trespasses are not subject to interception.”30 Specifically, the court reasoned:
Inciarrano …is not based on a general rule that utterances associated with criminal activity are by virtue of that association necessarily uttered in circumstances that make unjustified any expectation that the utterances will not be intercepted. Nor can the holding in Inciarrano be used as a basis for the decision reached by the Second District, which turns on McDade’s status as a person engaged in crimes involving the sexual abuse of a child.31
The court was sympathetic to the facts in McDade and noted that perhaps a “compelling case” could be made “for recordings that provide evidence of criminal activity — or at least certain types of criminal activity,” but ultimately reasoned that “it is not within the province of the courts to create such an exception by ignoring the plain import of the statutory text.”32 McDade, therefore, invited a legal and policy conversation about whether and how to use a child-sex abuse victim’s recordings of a defendant’s statements. That conversation birthed the SCA Amendment, which creates a subsection (k) to the SCA’s current exceptions to cover child sex abuse cases. As discussed below, an exception in response to McDade should account for considerations that the SCA’s current statutory framework and the caselaw related thereto have overlooked. In this regard, one could argue that even the SCA Amendment does not sufficiently account for these considerations.
The Policy Interests Supporting the SCA Amendment Also Reveal Its Shortcomings
• Underreporting and Reliability as Policy Concerns — The SCA Amendment will have a tangible impact on how victims and law enforcement address two important issues in child sex abuses 1) the reporting of child sex abuse, and 2) the reliability of victims’ testimony before the fact-finder. The statistics regarding child sex abuse frame the importance of these issues. According to the National Child Abuse and Neglect Data System (NCANDS), in 2012, 686,000 children were abused nationwide with an estimated 9.3 percent of child-abuse and neglect cases involving sexual abuse.33 In 2012, Florida had 53,341 victims of child abuse with 2,529 of those officially classified as victims of “sexual abuse.”34 Approximately 70 percent of sexual abuse cases go unreported to authorities.35 In view of these stark statistics, the SCA Amendment should — as comprehensively as possible — take into account the underreporting of child sex abuse36 and concomitant concerns about the reliability of child sex abuse victims’ testimony in those cases that are reported to authorities. When the victims testify as minors, issues regarding their reliability are only further magnified.37
Allowing child sex abuse victims — either on their own or with the assistance of a guardian — to record conversations with their abusers prior to disclosing the abuse to law enforcement 1) gives victims greater confidence to report the behavior to police, thereby helping to address the underreporting of the abuse, and 2) ameliorates some of the reliability concerns that the scientific and legal scholarship often mentions when discussing child-sex abuse victims’ testimony. The SCA Amendment helps address these underreporting and reliability concerns, but in a somewhat inchoate fashion because it prohibits guardians from undertaking recordings and only allows a child “under the age of 18” to undertake the recording. Given that a meaningful number of child sex abuse victims often do not report their abuse until they are adults, the SCA Amendment excludes the corroborative power of recordings in cases where they are, arguably, most needed.
• SCA Caselaw Discounts the Corroborative Power of Recordings38; The SCA Amendment, however, is a marked improvement over existing SCA statutory language and caselaw, which had been inhospitable to arguments premised on the accuracy or corroborative power of recordings. In Shevin v. Sunbeam Telev. Corp. , 351 So. 2d 723 (Fla. 1977), for example, the court addressed a media challenge to the SCA on First Amendment grounds, which the court rejected. In doing so, the court held that “First Amendment rights do not include a constitutional right to corroborate news gathering activities when the legislature has statutorily recognized the private rights of individuals.”39 Similarly, in State v. Walls, 356 So. 2d 294 (Fla. 1978), a victim of an extortionary threat, on his own initiative, recorded the defendants’ threats, which occurred during a conversation in the victim’s residence. The prosecution sought to play the tape at trial “ to corroborate the victim’s testimony.”40 The court rejected the prosecution’s arguments, reasoning that “[t]he function of this [c]ourt to interpret the law and is neither to legislate nor determine the wisdom of the policy of the [l]egislature.”41
Approximately three years after holding in Walls that the SCA did not allow a victim to record a defendant’s threats made to the victim in the victim’s own home, State v. Sarmiento, 397 So. 2d 643 (Fla. 1981), held that the SCA was unconstitutional when applied to recordings made by law enforcement in a defendant’s home.42 As in Shevin and Walls, the majority in Sarmiento discounted the use of the recordings as a means of corroboration, but Justice Alderman mentioned it in his dissent, noting that “[t]hey were monitoring the conversations not only to obtain corroborating evidence but also for the protection of the undercover agent.”43
After Sarmiento, the Court undertook a rapid expansion of Sarmiento ’s holding as seen in Hoberman v. State, 400 So. 2d 758 (Fla. 1981), in which it held that Sarmiento also applied to recordings that a confidential informant made in a defendant’s home. As in Sarmiento, Justice Alderman underscored the costs of Sarmiento ’s and Hoberman ’s holdings, stating: “I believe the majority…has gone beyond the letter of the Florida and federal constitutions and has judicially created an unreasonable barrier to relevant, probative, accurate, and reliable evidence. ”44 While Justice Alderman’s dissent in Hoberman addressed a holding premised on the Florida Constitution, it elucidates the SCA’s long-standing shortcomings in child sex abuse cases with respect to the witness reliability concerns as well as the statutory framework’s weaknesses.45 The SCA Amendment will shore up some of those weaknesses, but it falls short for the reasons previously expressed above. One of the SCA’s persistent weaknesses pertains to the law-enforcement exception and its use in child sex abuse cases.
• The Use of the Law Enforcement Exception in Child Sex Abuse Cases Falls Short — Close inspection reveals that the SCA’s long-standing law enforcement exception was not adequately ensuring the preservation and presentation of some of the most objectively reliable evidence in child sex abuse cases: The perpetrator’s own words. There is a discrete subset of cases involving child sex abuse victims and the SCA. Those cases demonstrate that the SCA’s law enforcement exception was ill-suited to accommodate considerations inherent to prosecutions involving child victims of sexual assault. That statutory exception undoubtedly protects an investigative strategy with a history stretching back more than 80 years,46 but it simply was not intended to address the underreporting of child sex abuse or the optimal preservation of a defendant’s noncustodial statements to child sex abuse victims.
The law, however, adapts itself to the exigencies of the moment, and a review of the pre- McDade cases reveals that the law enforcement exception operated as the font for obtaining and using recordings against a defendant in child sex abuse cases. In each of the reported child sex abuse cases involving the SCA, the prosecution made and used the recording at issue pursuant to the law enforcement exception.47 In at least two of the cases, State v. Stout, 693 So. 2d 657 (Fla. 4th DCA 1997), and Barr v. State, 659 So. 2d 370, 371 (Fla. 5th DCA 1995), the court addressed the defendant’s expectation of privacy in the conversation and noted that the defendant had no reasonable expectation of privacy in the content of the conversations with their alleged victims.48 After McDade, this content-based analysis stands on shaky ground given McDade ’s focus on the context, and not the content, of the recorded communications.49
• An Exception to the SCA for Child Sex Abuse Victims Is Not Novel — The SCA Amendment, while imperfect, is not earth-shattering in its ambitions. Florida law already makes certain accommodations for child sex abuse cases, such as those governing the admissibility of a child-sex abuse victim’s out-of-court statements and character evidence. Section 90.803(23) of Florida’s Evidence Code contains an exception allowing for the introduction of a child sex abuse victim’s hearsay statements at trial.50 Section 90.404 provides that “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.”51 The foregoing demonstrates that, in many ways, with the SCA Amendment the SCA is now more closely aligned with Florida’s statutory landscape on issues involving child sex abuse. Indeed, the SCA Amendment may very well facilitate better judicial decisionmaking for purposes of §90.803(23) because it will provide the “ corroborative evidence of the abuse or offense” in those instances in which the child is unable to testify at the statutorily required hearing.
• The SCA Amendment Has Shortcomings That the Legislature Should Address — Allowing child sex abuse victims to record conversations with their abusers prior to disclosing the abuse to law enforcement inspires greater confidence to report the behavior to police, thereby helping to address the underreporting of the abuse and addresses some of the credibility concerns that frequently plague child sex abuse victims’ testimony. The SCA Amendment is a decent effort to accomplish these two objectives, but falls short in two important respects.
First, it does not allow a parent or legal guardian of a child sex abuse victim to also record the perpetrator, which — depending on the child’s age — exposes the child to significant risks. Here, the doctrine of “vicarious consent” is worth considering. That doctrine provides that “as long as the guardian has a good faith basis that is objectively reasonable for believing that it is necessary to consent on behalf of her minor children to the taping of the phone conversations, vicarious consent will be permissible in order for the guardian to fulfill her statutory mandate to act in the best interests of the child.”52 The Florida Legislature’s counterparts in Georgia could provide guidance on this issue. Georgia’s wiretap statute expressly codifies vicarious consent, providing that the parent or guardian of a minor child is allowed to surreptitiously intercept the child’s telephone conversations when the interception is done “for the purpose of ensuring the welfare of such minor child.”53
The Florida Legislature should, at a minimum, consider a similar provision in any subsequent bill amending the SCA. Florida is a two-party consent state.54 As scholars have observed, the vicarious consent doctrine has usually been applied in those jurisdictions that enact one-party consent exceptions and applies “in these specific jurisdictions because its sole purpose…is to allow a parent or guardian to record a child’s telephone conversations without the child or, in particular, the person with whom the child is speaking, becoming aware of the interception.”55 Nevertheless, there is nothing preventing the Florida Legislature from creating a similar exception while keeping intact the SCA’s two-party consent requirement in other contexts. Doing so would have strong legal support because “the weight of authority…holds that a parent may vicariously consent for their child so long as that parent has a good faith basis that is objectively reasonable for believing that it is necessary to consent on behalf of her minor children to the taping of phone conversations.”56
Second, the SCA Amendment falls short because it does not allow a victim to record the perpetrator once the victim turns 18 years old. The latter point is not an esoteric one — in McDade, there was a six-year gap between the start of the abuse and the moment that the victim recorded the defendant. Thus, if the defendant in McDade had started the abuse when the victim was 12 and the victim recorded the conversation at issue when she was 18, the SCA Amendment would prohibit the recording, and the Florida Supreme Court’s outcome would be the same.57 The SCA Amendment’s age restriction also overlooks substantially the scientific evidence on “delayed recall,” whereby victims only recall the alleged abuse years after they endured it.58 The SCA Amendment as passed treats child sex abuse victims differently depending on their age at the time that they decide to record the alleged perpetrator. With the exception of cases in which the statute of limitations or repose has expired, the ability to record should turn on the person’s status as a victim of child sex abuse and not their age at the time they make the recording. The Florida Legislature should consider addressing these issues in future legislative sessions. Prosecutors, plaintiffs’ attorneys, and defense attorneys who handle child sex abuse cases should also note these issues as they will, no doubt, impact the SCA Amendment’s applicability in certain cases.
Conclusion
Justice Benjamin Cardozo once said that “law never is, but is always about to be.”59 Something akin to the SCA Amendment was long overdue, and it took a judicial outcome, such as McDade ’s, to inspire change from the Florida Legislature. The SCA Amendment is a decent start in helping address long-standing issues that plague child sex abuse cases and the SCA. It fails, however, to realize its full potential because it excludes parents and guardians of child sex abuse victims from undertaking the recordings in the best interests of the child. Further, it treats recordings in an unnecessarily disparate fashion depending on the age of the victim at the time that the recording is made. Until these issues are addressed, the SCA will continue to impose substantial personal and societal costs in child sex abuse cases. Victims will continue, in some cases, to have their testimony challenged without the benefit of recordings that may exist. Society at large will not benefit from recordings’ inherent ability to enhance the judicial truth-seeking function in child sex abuse cases.
1 Fla. Stat. §934.10 (2014) (providing for civil cause of action with the possibility of obtaining punitive damages and attorneys’ fees).
2 History of H.B. 7001, available at http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53677&.
3 In its entirety, the SCA Amendment creates a new exception located in Fla. Stat. §934.03(2)(k), providing that: “It is lawful under ss. 934.03-934.09 for a child under 18 years of age to intercept and record an oral communication if the child is a party to the communication and has reasonable grounds to believe that recording the communication will capture a statement by another party to the communication that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the child.”
4 History of H.B. 7001, available at http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53677&.
5 Shevin v. Sunbeam Telev. Corp. , 351 So. 2d 723, 727 (Fla. 1977) (citing Katz v. United States, 389 U.S. 347, 350 (1967)).
6 The Florida Supreme Court has discussed the statute’s policy objectives on multiple occasions. See Shevin, 351 So. 2d at 726-27 (describing Ch. 934 as “a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation”); State v. Walls, 356 So. 2d 294, 296 (Fla. 1978) (“Hence the [l]egislature has determined as a matter of public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping.”). In this regard, it is worth noting that First Amendment arguments have failed to triumph over the statute’s policy preferences. See Shevin, 351 So. 2d at 727.
7 See State v. Tsavaris, 394 So. 2d 418, 424 (Fla. 1981) (“[I]t is absolutely immaterial to a proper analysis of Chapter 934 that a recording may provide more trustworthy evidence of the contents of a conversation than mere oral testimony….Florida law mandates that while a person who engages in a telephone conversation runs the risk that another may later testify as to the contents of that conversation, he can at least be assured that the conversation will not be recorded without his consent. It is not for us to question this policy judgment, but simply to apply it.”).
8 For example, one may also reasonably question whether an exclusionary rule should apply to civil cases, as it does presently under the statute. In civil cases between private parties, the specter of state power and deterring future abuses thereof is absent, but the costs to the judicial truth-seeking function remain. In civil cases, private causes of action that an aggrieved party could potentially assert in cases involving a surreptitious recording undermine the vindication and protection of privacy interests often attributed exclusively to application of the exclusionary rule. For example, a common law cause of action for invasion of privacy exists in certain cases. See Forsberg v. Hous. Auth. of the City of Miami Beach, 455 So. 2d 373, 376 (Fla. 1984) (“This [c]ourt, following the majority rule, has expressly recognized a right to sue in tort for the civil wrong of ‘invasion of privacy.’”). “An actionable invasion of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in the manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” Mara A. Wites, Florida Causes of Action, §9:40.1.3 (8th ed. 2014); see also id. at §§9:50-9:60 (discussing tort of invasion of privacy based on the public disclosure of private facts and tort of invasion of privacy based on “intrusion”).
9 Fla. Stat. §934.03 (2014).
10 Fla. Stat. §934.02(2) (2014).
11 State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985).
12 Id.
13 Fla. Stat. §934.06 (2014) (emphasis added).
14 Fla. Stat. §934.10 (2014) (providing for civil cause of action with the possibility of obtaining punitive damages and attorneys’ fees); Fla. Stat. §934.03(4) (2014) (providing for criminal penalties). “In chapter 934, the Florida Legislature evidenced its overriding concern for the protection of personal privacy by imposing both civil and criminal sanctions upon those in violation of the statute.” Burgess v. Burgess, 447 So. 2d 220, 222 (Fla. 1984). The elements of a cause of action under the SCA are 1) the person whose communication was intercepted must be a Florida resident, or the interception must have occurred in Florida; 2) the person whose communication was intercepted had a subjective expectation of privacy in the intercepted communication; and 3) society must recognize the expectation of privacy as reasonable. See Cohen Bros., LLC v. ME Corp., S.A., 872 So. 2d 321, 324 (Fla. 3d DCA 2004) (per curiam) (citing State v. Smith, 641 So. 2d 849, 852 (Fla. 1994)).
15 Fla. Stat. §934.03(2)(c) (2014).
16 McDade, 154 So. 3d at 295.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 McDade, 114 So. 3d 465, 469 (Fla. 2d DCA 2013).
24 Id. at 470.
25 Id.
26 Specifically, Judge Altenbernd wrote a special concurrence, and Judge Villanti concurred in part and dissented in part. Judge Villanti concurred with respect to the majority’s opinion regarding a hearsay issue, but dissented with respect to the admissibility of the recordings under the SCA. Judge Villanti reasoned that the SCA is unambiguous and the recordings clearly fell within the statute’s prohibition. McDade, 114 So. 3d at 476. In contrast, Judge Altenbernd, reasoned that under the “society-is-prepared-to-recognize” test, a present-day defendant who is sexually abusing a teenager “in a bedroom of their shared home had no reasonable expectation that their conversation about the abuse would never be recorded.” Id. at 471-72.
27 McDade, 115 So. 3d at 299.
28 Id. at 297. The court then focused on State v. Walls, 356 So. 2d 294 (Fla. 1978), when it found that the recordings were inadmissible under the SCA pursuant to a plain-language analysis of the statute.
29 McDade, 115 So. 3d at 298 (“Similarly,…McDade’s conversations with his stepdaughter in his bedroom are oral communications.”).
30 Id. (emphasis added).
31 Id. at 299. The court’s reasoning that McDade’s status as an alleged perpetrator of a crime should not impact the SCA’s applicability is not novel. Arguably, it finds its roots in Shevin, when the court held that news gathering activities into criminal behavior do not trump the SCA’s privacy protection. As part of that holding, the court stated that “[the First Amendment] does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime . ” Shevin, 351 So. 2d at 727.
32 McDade, 115 So. 3d at 300.
33 See NCANDS Report on Child Maltreatment (2012), available at http://www.acf.hhs.gov/sites/default /files/cb/cm2012.pdf.
34 Id. at 39, Table 3-8, Maltreatment Types of Victims.
35 See Department of Justice, NSOPW, Facts and Statistics, http://www.nsopw.gov/en/Education/FactsStatistics (citing D. Finkelhor, 19(2) The Prevention of Childhood Sexual Abuse, Future of Children 169-94 (2009)).
36 See Karla-Dee Clark, Innocent Victims and Blind Justice: Children’s Rights to Be Free from Child Sexual Abuse, 7 N.Y.L. Sch. J. Hum. Rts. 214, 225 (1990) (“Due to the small amount of credence given to the child’s story and the nature of the offense, child victims find themselves confined within the secrecy of the crime. Adding to these pre-existing complications is the delay in reporting the offense which increases the difficulty of prosecuting the case. Delays in reporting occur for the obvious reason that most perpetrators threaten their victims with retaliation for telling anyone about the incident.”); see also Doe v. United States, 976 F.2d 1071, 1074-75 (7th Cir. 1992) (“The number of children sexually abused each year in the United States has been estimated at between 60,000 and 100,000, and even these disturbing statistics are underinclusive because many cases go unreported. Detecting sexual abuse, and convicting its perpetrators, is problematic because of the lack of witnesses, the difficulty of obtaining corroborative physical evidence, and the typical reluctance or inability of the victim to testify against the defendant.”) (citations and footnotes omitted).
37 See, e.g., Lucy Berliner & Mary Kay Barbieri, The Testimony of the Child Victim of Sexual Assault, J. of Social Issues at 125 (Summer 1984) (“When the accused offender does not admit the guilt, the testimony of the child victim is likely to be the only or the main evidence. Members of the criminal justice system often share general societal beliefs that children are not as credible as adults and that children cannot participate in such legal proceedings without serious trauma.”).
38 While Fla. Stat. §794.022(1) does not require the prosecution to corroborate a victim’s testimony in a prosecution for sexual battery, the Florida Supreme Court reiterated in July 2015 that the “lack of corroboration [in a sexual abuse case] is a proper subject of argument ” at trial. Gutierrez v. State, No. SC14-799, 2015 WL 3887354 at *6 (Fla. June 26, 2015) (holding that a special jury instruction regarding “no corroboration” was “improper regardless of whether the defense counsel has pointed out to the jury that no other witness has corroborated the victim’s account” because “[t]hat is a proper subject for argument, but not jury instruction”) (emphasis added). Accordingly, the presence (or absence) of recordings under the SCA Amendment will impact the jury’s determination of a defendant’s culpability and a victim’s credibility.
39 Shevin, 351 So. 2d at 727 (emphasis added).
40 Walls, 356 So. 2d at 295.
41 Id. at 296 (quoting Shevin ’s observation that “[t]his was a policy decision by the Florida Legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation”).
42 See Sarmiento, 397 So. 2d at 645 (“[I]nsofar as that statute [in Fla. Stat. §934.03(2)(c) (1977)] authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable.”). In addition to Sarmiento, 1981 saw an additional three opinions from the Florida Supreme Court opinions addressing the SCA. See State v. Tsavaris, 394 So. 2d 418 (Fla. 1981); Hoberman v. State, 400 So. 2d 758 (Fla. 1981); Odom v. State, 403 So. 2d 936 (Fla. 1981). Sarmiento was ultimately overturned by an amendment to the Florida Constitution as noted in State v. Small, 483 So. 2d 783, 786-87 (Fla. 3d DCA 1986): “The Florida electorate…in the November 1982 elections, approved certain amendments to [Fla. Const. art. I, §12], effective January 1, 1983, which preclude Florida courts from interpreting the state constitutional guarantee on search and seizure so as to give an individual greater rights than that enjoyed under the Fourth Amendment, as interpreted by the [U.S.] Supreme Court. Florida decisions, such as State v. Sarmiento, 397 So. 2d 643 (Fla. 1981), which accomplish this prohibited result are therefore no longer good law; indeed, the subject amendments were, in part, specifically aimed at overruling Sarmiento. ”
43 Sarmiento, 397 So. 2d at 646 (Alderman, J. dissenting) (emphasis added).
44 Hoberman, 400 So. 2d at 762 (Alderman, J. dissenting) (emphasis added).
45 Id. at 760-61 (quoting White, 401 U.S. at 749-53).
46 Over 80 years ago, in February 1912, Los Angeles authorities invited Clarence Darrow to a hotel room where a microphone had been hidden. They hoped to obtain inculpatory statements about a bribery scheme. In the next room were “[t]wo stenographers who would be able to hear conversations in the other rooms by listening to a dictograph machine — a new and potentially frightening technological innovation….At two twenty-five that afternoon Darrow knocked on the door of Room 437 and walked into what Darrow’s lawyers called the ‘Dictograph Trap.”’ G. Cowan, The People v. Clarence Darrow 296-97 (1993).
47 See Thompson v. State, 731 So. 2d 819, 820 (Fla. 5th DCA 1999) (involving 12-year-old victim who reported the abuse to law enforcement and recorded a conversation with the defendant at their direction); State v. Stout, 693 So. 2d 657 (Fla. 4th DCA 1997) (involving victim of child sex abuse who contacted police as an adult 10 years after the abuse occurred and recorded the defendant at the direction of law enforcement); Barr v. State, 659 So. 2d 370, 371 (Fla. 5th DCA 1995) (admitting into evidence, pursuant to the law-enforcement exception, recorded conversation of the defendant who abused his daughter).
48 Stout, 693 So. 2d at 658 (citing Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979) (“A wrongdoer who voluntarily speaks to another of his wrongdoings, only has the hope or expectation, not a constitutionally protected right, that the other person will not breach his confidence and testify as to the contents of their conversations. It logically follows then that recordings of such communications should be and are admissible after the individual in whom the accused has confided has testified…in that in the search for the truth it is by far the most reliable evidence possible.”)); Barr, 659 So. 2d at 371 (also relying on Franco).
49 See McDade, 154 So. 3d at 299 (“ Inciarrano therefore is not based on a general rule that utterances associated with criminal activity are by virtue of that association necessarily uttered in circumstances that make unjustified any expectation that the utterances will not be intercepted….The whether-society-is-prepared-to-recognize formulation has its genesis in the Fourth Amendment context.…This formulation cannot be understood to justify a categorical rule that persons involved in criminal activities have no justified expectation of privacy in conversations related to those activities.”).
50 Fla. Stat. §90.803(23) (2014) provides in relevant part: “(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.…; and 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)….(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.”
In State v. Jones, 625 So. 2d 821 (Fla. 1993), the Florida Supreme Court held that a child abuse victim’s out-of-court statements that identified the abuser are inadmissible under the medical-diagnosis exception and found that their admissibility should be determined under §90.803(23), the hearsay exception for victims of child abuse. See also Charles W. Ehrhardt, When Children and the Elderly Are Victims: Balancing the Rights of the Accused Against Those of the Victim, 55 U. Miami L. Rev. 645, 648-49 (2001) (discussing same).
51 Fla. Stat. §90.404 (2014).
52 Thompson v. Dulaney, 838 F. Supp. 1535, 1544 (D. Utah 1993); Silas v. Silas, 680 So. 2d 368, 371 (Ala. Civ. App. 1996) (adopting vicarious consent doctrine in the context of one parent who recorded the other parent’s conversations with the child, but appearing to narrow its application to situations in which there is a good-faith basis for believing that the child is “being abused, threatened, or intimidated” by the other parent); Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) (arising under the federal wiretapping statute and approving vicarious consent doctrine, but also applying it to children much older than those involved in Thompson and seemingly doing away with Thompson ’s requirement that the child lack both the capacity to legally consent and the ability to give actual consent); State v. Diaz, 706 A.2d 264 (N.J. Super. Ct. App. Div. 1998) (holding that parents could vicariously consent on behalf of their five-month-old infant to recording a nanny abusing the child on videotape under New Jersey’s version of the federal wiretap act and citing Thompson in support of its holding that the state statute incorporates the theory of vicarious consent); Alameda v. State, 235 S.W.3d 218, 223 (Tex. Crim. App. 2007) (relying on Pollock and adopting the doctrine of vicarious consent in the context of Texas’ wiretapping statute and reasoning that “[b]ecause the recording of the conversations meets the standards set out in Pollock, …and, since it is not a violation of Penal Code section 16.02 to intentionally intercept an oral communication if one party consented, no law was broken [and the evidence is admissible]”); but see Williams v. Williams, 229 Mich. App. 318, 581 N.W.2d 777 (1998) (declining to adopt the doctrine of vicarious consent).
53 Ga. Code Ann. §16-11-66(d) (2005). Furthermore, when the parent or guardian has a reasonable or good-faith belief that the recording is evidence of criminal conduct, the parent or guardian can, under Georgia’s statutory scheme, lawfully turn that recording over to either law enforcement or the prosecuting attorney, and it can further be used as evidence during a judicial proceeding. See Daniel R. Dinger, Should Parents Be Allowed to Record A Child’s Telephone Conversations When They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of A Crime, 28 Seattle U. L. Rev. 955, 988-89 (2005); id. at 965, n.58 (containing listing of each state’s wiretapping laws).
54 In addition to the federal Wiretap Act, all states, except for Vermont, have enacted their own wiretap statutes. While some state statutes mirror the federal Wiretap Act, other states’ statutes are more restrictive. No state statute is less restrictive than the federal Wiretap Act. Two-party consent statutes represent the most impactful way in which many state wiretap statutes are more restrictive than the federal Wiretap Act. Eleven states’ statutes include a two-party consent requirement. Additionally, the Nevada Supreme Court held that its statute requires two-party consent. See Allison B. Adams, War of the Wiretaps: Serving the Best Interests of the Children?, 47 Fam. L.Q. 485, 491-92 (2013).
55 Dinger, Should Parents Be Allowed to Record A Child’s Telephone Conversations When They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of A Crime, 28
Seattle U. L. Rev. at 967 (2005).
56 Babb v. Eagleton, 616 F. Supp. 2d 1195, 1206 (N.D. Okla. 2007) (internal quotations omitted).
57 Similar delays are seen in other SCA cases. See State v. Stout, 693 So. 2d 657 (Fla. 4th DCA 1997) (involving victim of child sex abuse who contacted police as an adult 10 years after abuse occurred and recorded defendant at the direction of law enforcement).
58 “[Scientific studies] show that abused children have a significant asymmetry in hemispheric activity, with unresolved traumatic memories being associated with an excessively right-dominant activation pattern. These brain differences led [researchers] to hypothesize that the inability of child abuse victims to have normal ‘bilateral cooperation’ of the left and right hemispheres may be at the core of their posttraumatic stress. This delay in brain cooperation between hemispheres has been referred to as ‘delayed recall.’ [These studies suggest] that years can pass before a contextual change in an individual’s life occurs and the recollection of a traumatic event can become available to conscious recollection. These delays create difficulties for the legal enforcement of child abuse laws, as well as for therapy.” Janis Clark Johnston, The Need for Belonging Goes Awry: Sexual Abuse and Children, 56 DePaul L. Rev. 909, 920-21 (2007) (internal citations omitted).
59 Benjamin N. Cardozo, The Nature of the Judicial Process 126 (1921).
Armando Rosquete is an attorney at Boies, Schiller & Flexner in Miami, a former assistant U.S. attorney, a former law clerk for Justice Raoul G. Cantero III on the Florida Supreme Court, and a graduate of Harvard Law School. Mr. Rosquete thanks his colleagues, Tyler Ulrich, Kristina Infante, and Javier Reyes, for their time and thoughts.
