Everybody likes parties. New Year’s Eve parties, office parties (look, there’s cake!), birthday parties. In the law, however, you can have one party or two parties. Here, we’re talking about consenting parties to recording. And Virginia is a one-party consent state.
Wiretapping in Virginia
The colloquial term, “wiretapping,” actually has a legal definition, too. Under Code of Virginia § 19.2-62 all electronic communication issues are resolved in the catch-all title, “Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.”
That means the one law (which is lengthy) applies to the act of intercepting a wire communication and recording something “live” in public and private.
Under the Code, Virginia qualifies as a “one party consent” state. That is, only one person in the conversation needs to give consent to have the conversation recorded.
In most cases, this applies to wireless, wired, and electronic communications. The law, however, is plainly titled to include “oral communications,” such as a mild disagreement/argument/raging brawl between spouses.
The Expectation of Privacy
The fine line of 19.2-62 is that settled case law and federal laws support an “expectation of privacy.” In BELMER v. COMMONWEALTH, no expectation of privacy for Virginians can exist in publicly served places like police cars, police stations, police interrogation rooms, city streets, and other open or publicly accessible spaces.
You could record images and even conversations in restaurants, bars, hotel lobbies, movie theatre lobbies, and malls if you are one of the parties in the conversation. Your other parties cannot assume an expectation of privacy, unless the privately owned public accommodation posts signs forbidding recording.
Many do; many courthouses and police stations post signs warning of their right to record and your requirement not to record without prior arrangement. That’s why news programs usually record outside the courthouse; it is simply easier to do than to arrange with a judge for cameras inside.
An expectation of privacy can exist in one’s own home and other sensitive spots, however. You don’t see recording devices in public restrooms, changing rooms, hospital rooms, and the like. Expectations of privacy are pervasive and the default in such settings.
You may have a personal home security system with cameras, but everyone in the household knows the cameras exist, and for a specific purpose. The cameras are undoubtedly absent in your bedrooms, bathroom, and your private home office, right?
Watch The Fine Line
The problem with that fine line between an expectation of privacy and you deviously recording an argument is that you may end up on the wrong side of the law. Sure, you can record your wife and yourself arguing, but to what end?
Are you seeking evidence of her behavior? Outside, unbiased authorities are more persuasive. Medical records, police reports, or court orders are much more convincing that an audio or video recording made on your cell phone.
Are you trying to gather evidence of abuse? An emergency room visit and photographs by the medical staff are far more effective than your recording. And you avoid stumbling into a lawsuit.
Yes, she could sue you for recording her without her consent if she had a reasonable expectation of privacy.
It’s Porno Rules Around Here
If you are determined to audio or video record an argument between the two of you, capture her consent on record, too.
This is the pornographic film industry’s shield against lawsuits; all … uh … “performers” are videotaped with proof of age (a partially masked driver’s license) and their oral consent to be recorded “performing” their … uh … activities. Yeah. Activities.
So, let’s say you sense a change in the air and an argument brewing. You already know you two are headed to rough waters, and the marriage may already be crumbling. You can start your cell phone video or audio, say loudly and clearly that you are recording, and let her know you want to record the conversation so you can both be sure of what was said. Ask her to say she agrees, or knows she’s being recorded.
The laws about wireless and wired communications, recording, and wiretapping are state-level laws. You may be able to get away with the video or audio of a fight you both had in your Norfolk home. You cannot get away with recording her if you are in Virginia and she is in another state that has all-party or two-party consent.
Besides not being universally applicable, such a move may come back to bite you, since a lot of judges would see it as something that rhymes with “a trick move.”
The judge may be wholly uninterested in revelations from the recording but mighty interested in the circumstances of you recording your wife with or without her knowledge. In that case, you’ve poisoned the well and your case is weaker.
For solid help with strong legal arguments, contact us today at The Firm For Men. We can provide all aspects of family law assistance, from gathering evidence for separation and divorce to protecting your finances after you and your wife part ways. Feel free to telephone our office at (757) 383-9184.