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Criminal Practice – CSC with a Minor – Evidence – S.C. Homeland Security Act – Wiretapping by Parent – Vicarious Consent – First Impression – Forensic Interview

Criminal Practice – CSC with a Minor – Evidence – S.C. Homeland Security Act – Wiretapping by Parent – Vicarious Consent – First Impression – Forensic Interview

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State v. Whitner (Lawyers Weekly No. 010-064-12, 19 pp.) (John W. Kittredge, J.) (Costa M. Pleicones, J., joined by Acting Justice Eugene C. Griffith Jr., concurring) Appealed from Greenville County Circuit Court. (John C. Few, J.) S.C. S. Ct. Full-text opinion.

Holding: Since the minor victim’s mother acted in good faith when she recorded the victim’s telephone conversations with defendant, the recordings were admissible under the S.C. Homeland Security Act.

We affirm defendant’s conviction of criminal sexual conduct with a minor.

Defendant is the victim’s biological father. When the victim was 11 years old, she told her mother that, when she was five or six years old, defendant exposed his penis to her and forced her to perform oral sex on him twice.

The mother consented to her new husband recording a telephone conversation between the victim and defendant without the victim’s knowledge. During the conversation, defendant admitted the sexual abuse.

The mother supplied the recording to law enforcement, and the recording was admitted into evidence pursuant to the ruling of a panel of our Court of Appeals.

The S.C. Homeland Security Act (the Wiretap Act) generally prohibits the interception of communications. The Act does allow one participant to consent to the interception of a conversation without the knowledge of the other participant.

Defendant argues that because there is no explicit provision permitting vicarious consent, parental consent on behalf of a minor was not intended to be an exception to the Wiretap Act. We disagree.

Our Wiretap Act parallels the Omnibus Crime Control and Safe Streets Act of 1968 (the Federal Act), which similarly permits lawful interception where one party to the communication consents.

Because no S.C. cases have addressed a parent’s ability to vicariously consent to the recording of a child’s telephone conversations and because the Federal Act is substantively the same as the S.C. Wiretap Act, we look to the federal courts’ interpretations regarding vicarious consent.

The majority view is set out in Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998): “As long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.”

When our legislature enacted the Wiretap Act, it was well aware of the majority rule concerning construction of the Federal Act in allowing for vicarious consent. We join the majority of state courts that have followed the federal interpretation.

The Court of Appeals correctly determined that the consent provision in the Wiretap Act includes vicarious consent.

Even though the victim was 11 years old at the time of the recording, a minor’s actual ability to consent does not preclude a parent’s ability to vicariously consent on her behalf. The ability to invoke the vicarious consent doctrine prior to the age of majority does not turn on an age-mandated bright-line rule, nor does it require a minor’s lack of capacity.

The mother and stepfather testified that they believed the recordings would assist them in deciding the best course of action and in determining whether the victim needed counseling. Likewise, the mother testified it was necessary to determine if it was in the victim’s best interest to have continued visitation with defendant. We believe the evidence supports the Court of Appeals’ finding that the mother had a good faith and objectively reasonable belief that intercepting the telephone conversation was necessary and in the victim’s best interest. Thus, the Court of Appeals did not abuse its discretion in denying the motion to suppress.

Defendant also challenges the admission into evidence of a videotape of a forensic interview with the victim. Generally, a prior consistent statement is not admissible unless the witness is charged with fabrication or improper motive or bias. Rule 801(d)(1)(B), SCRE. However, in CSC cases involving minors, the legislature has made specific allowances for such hearsay statements of child victims under the proper circumstances.

Here, the forensic interviewer did not improperly lead or influence the victim in any way, and the victim answered the questions on her own accord. Moreover, the forensic interviewer’s testimony was for the limited purpose of laying the proper foundation for the admission of the videotape. It offered no improper testimony, and included no bolstering testimony that would invade the province of the jury. Thus, there was no error in the admission of the forensic interview into evidence.

Affirmed.

Concurrence

(Pleicones, J.) Troxel v. Granville, 530 U.S. 57 (2000), concerned the appropriate treatment of parental constitutional rights when a court was reviewing a fit parent’s decision regarding the social activities of her child, much as the Pollock test involves a court in reviewing a presumptively fit parent’s decision regarding the social activities of her child. The plurality opinion in Troxel states that the fundamental constitutional right of parents to guide the upbringing of their children mandates “a presumption that fit parents act in the best interests of their children.” The Pollock test reverses this presumption by placing the burden of proof on the parent to demonstrate that his motives for recording his child’s conversation were proper and based on objectively reasonable concerns. Thus, the Pollock test is not viable after Troxel, at least as to its allocation of the burden of proof.

Further, under the Pollock test, a parent cannot exercise her fundamental constitutional right to guide the upbringing of her child without risking criminal penalty should a court disbelieve her stated motives, disagree with her assessment of the threat posed by the particular circumstances, or find that the child’s age or capacity to consent sufficiently negates the parent’s otherwise valid concerns. Such treatment of fundamental rights protected by the Constitution is impermissible.

With regard to admission of the forensic interview recording, there is no basis for an improper bolstering argument when prior testimony is admitted pursuant to S.C. Code Ann. § 17-23-175, and I agree with the majority that the trial judge did not abuse his discretion when he admitted the videotaped interview.

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