A person who records sexual activity without the consent of the parties engaged in the activity may be charged with eavesdropping. Disagreement exists as to whether the recording of sexual activity without accompanying conversation constitutes a “communication” under the statute. Note that a civil remedy is also available for violation of this statute.
b. Text of the Statute
Cal. Penal Code § 630 et seq.
Legislative Finding and Intent--§ 630
“The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.
The Legislature recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques in the investigation of criminal conduct and the apprehension of lawbreakers. Therefore, it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter.”
Criminal Recording of Confidential Information—§ 632
“(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
- People v. Gibbons, 263 Cal. Rptr. 905 (Cal. Ct. App. 1989).
Procedural Posture: Defendant appealed conviction for violation of eavesdropping statute, arguing that videotaping sexual activity is not prohibited by the statute.
Law: Cal. Penal Code §§ 630 and 632
Facts: Defendant videotaped three sexual encounters he had with women without first obtaining their consent. Women were unaware of the tapes until they were notified of their existence by the police.
Outcome: The court held that the statute prohibited recording of sexual relations and that interpreted on its face, the statute gave defendant fair notice that the recording of sexual relations was prohibited.1 The court recognized sexual acts as confidential communications: “Consistent with the express declaration of intent [in § 630] and in the absence of any express statutory limitations [unlike federal wiretapping provisions], we find that ‘communication’ as used in the privacy act is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto. If the act covers eavesdropping on or recording of a telephone call, it surely covers the nonconsensual recording of the most intimate and private form of communication between two people [sex].”2 Furthermore, the court notes “[t]hat sexual relations is a form of communication, be it communication of love, simple affection or, simply of oneself, [which] cannot readily be disputed.”3
Contrary case law: Two cases have rejected the broad interpretation of the eavesdropping statute adopted in Gibbons: 1) In People v. Drennan, the court found that § 632 prohibits only “the recordings of the contents of audible or symbol-based communications.4 In Drennan, a superintendent had installed a video camera that took periodic photographs without sound, of a principal’s office.5 2) People v. Zuber, discussed below.
- People v. Zuber, No. C032200, 2002 Westlaw 169660 (Cal. Ct. App. Feb. 4, 2002).
Procedural Posture: Defendant appealed jury conviction of electronically recording a confidential communication without the other person’s knowledge or consent.
Law: Cal. Penal Code § 632; [Also rape charges at trial court, but jury did not convict of rape]
Facts: After defendant was accused of rape, the police searched his home and found a videotape of a sexual encounter between defendant and victim, as well as nude photographs of the victim. The victim testified that at the time of the incident, she was intoxicated and unaware of being filmed/photographed. She also maintained that she had not given defendant permission to film/photograph her. Witnesses testified that the defendant had said he “wasn’t really happy with [the victim]” and that he might mail the photos “to her or mail [them] to [her employer] and embarrass her.” Defendant also showed the video to another witness.6
Outcome: The court affirmed the conviction, but found that “[f]ollowing the reasoning of Drennan, we conclude that sexual intercourse, without any accompanying conversation, is not a confidential communication within the meaning of section 632.”7 However, the video in this case did include conversation of an extremely personal nature (victim’s inability to achieve an orgasm, insecurity about her body image, crying, and expressions of inadequacy).
d. Practice Pointer
A victim of eavesdropping may also bring a civil action:
Cal. Penal Code § 637.2—Civil action by person injured; injunction
“(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:
(1) Five thousand dollars ($5,000).
(2) Three times the amount of actual damages, if any, sustained by the plaintiff.
(b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).
(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”