Should NH exempt domestic abuse victims from wiretapping law?

Part of what makes the study of public policy so fascinating is how even the most admirable proposals can warrant deeper scrutiny. A great example of this is found in HB 143, a bill before the NH House of Representatives that would allow domestic violence victims to secretly record their abusers without running afoul of the state’s wiretapping law.

A change to the law

HB 143, proposed by Rep. Dave Testerman (R-Merrimack), allows a person to create a recording, without consent of the people recorded, for the purpose of documenting an act of domestic violence. This recording would then be admissible as evidence in court against the abuser. Both video and audio recordings would be allowed under this proposed statute.

The bill would amend RSA 570-A:2, II, the part of New Hampshire law that deals with wiretapping and eavesdropping. Under that law, a person may be guilty of a misdemeanor if they secretly record a conversation they are involved in. (There are harsher felony penalties for recording conversations you are not even involved in, for example by bugging someone’s house.) New Hampshire’s wiretapping law has a list of exemptions, and this bill would add to that list.

A real world example

Last summer, in Plymouth, Massachusetts, an alleged domestic violence victim was charged with eight counts of illegal wiretapping for making secret recordings of her husband, her alleged abuser. Massachusetts’s state wiretapping law makes it a criminal offense to record someone without their permission. The case sparked outrage and calls for changes to state laws. HB 143 seeks to address the potential for a similar situation in the Granite State.

Intentions and unintended consequences

Despite the admirable intentions of the bill, the bill’s public hearing revealed problems with its execution. A representative of the NH Coalition Against Domestic and Sexual Violence actually spoke against the bill, sharing concerns that more work needs to be done to ensure the law couldn’t be used against victims by their abusers. For example, an abuser could conceivably secretly record an altercation and then edit down the video to make it appear that the victim was actually the primary aggressor. A future version of the bill could be written to try to address such concerns.

Others pointed out that the Governor’s Commission on Domestic Violence, Sexual Assault, and Stalking is considering this issue. This commission, established last April, is taking a multi-disciplinary approach to addressing the needs of victims and to hold offenders accountable for their actions. Those at the hearing suggested that the commission should be allowed to complete its work before an attempt is made to address this issue.

Ultimately, members of the House Criminal Justice and Public Safety decided to recommend killing the bill. Still, the full House will get their chance to vote on the bill February 14.

If you want to share your thoughts on this bill with your representatives, visit our Elected Officials page and select your town from the drop-down menu. This will provide you with a linked list of all your representatives. If you want tips and scripts to help contacting an official, click here to see our tutorial.

Update: The House killed HB 143. Click here to explore the latest legislative proposals related to rape, domestic violence and sexual assault.