1. Recordings of Sexual Harassment or a Hostile Work Environment Can Be Crucial

At McHugh Law, we are always looking for ways to catch harassers “red-handed” or in the act of harassing. Text messages, emails, videos, photos, and other “receipts” are crucial to catching sexual harassment or a hostile work environment. Although your memory and testimony alone is evidence of sexual harassment, it usually takes more to convince a judge or a jury that you were being harassed in the workplace. Additionally, most harassers are smart, and will wait until they are alone with you, or have you isolated until they say and do the worst things to you. Therefore, making recordings of your harasser can be one of the only ways to document the harassment as it happens.

As a famous example, Gretchen Carlson, a reporter for Fox News filed a sexual harassment lawsuit against Fox News and its CEO at the time, Roger Ailes. One of the reasons why Ms. Carlson’s suit was so successful and why she was able to garner a multi-million-dollar settlement was because of evidence she preserved, most notably the secret conversations that she was able to record with Roger Ailes while they were alone. 

As another example, in a criminal case against now disgraced Hollywood producer Harvey Weinstein, police were able to record private conversations between Mr. Weinstein and model Ambra Battilana Gutierrez, as Weistein harassed Guitierrez and attempt to coerce her into his hotel room and apparently admitted to assaulting her.

These are courageous acts by women to catch their harassers in the act to be able to prove it later, and in a court of law if necessary. But legally, what can a victim in Washington do to catch their harasser in the act and be able to use this evidence in Court?

2. Is recording secret conversations with my harasser legal in Washington?

For the most part, no, in Washington you cannot record secret conversations with your harasser without informing the person that you are recording.

In Washington, the law that applies is RCW 9.73.030. Washington’s “Privacy Law” makes it a crime to intercept or record a “private” conversation, telephone call, or electronic conversation unless BOTH parties are aware of the recording and consent to it. This is what is known as a “two-party consent” law.

For example, in Christensen, the parties agreed that a mother violated the privacy act when she “activated the speakerphone function of the cordless telephone system by pressing a button on the base unit” and listened to a conversation between her daughter and her daughter’s boyfriend. State v. Christensen, 153 Wash. 2d 186, 192 (2004).

As another example, in Faford, the Supreme Court held that a private individual unlawfully intercepted his neighbors’ communications when he used a police scanner to eavesdrop on their telephone conversations. 128 Wn.2d 476, 479, 910 P.2d 447 (1996).

However, the law begs several questions. When are conversations “private” or “secret”? What kind of consent is necessary? Are there exceptions to this general rule? Below we explore the answers to these questions.

3. What if I tell the other party that I am recording?

One of the easiest ways to be able to record your harasser is to inform them that you are recording. Obviously, you lose the element of surprise with the harasser, and often they will be on their best behavior. But sometimes, you can still catch your harasser in the act, despite informing them of your recording. Therefore, if you announce that you are recording, the other side consents, and you catch the harasser in the act, the recording is likely legal, and potentially usable in court, such as in a sexual harassment case. The law specifically states the following:

consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted…

See RCW 9.73.030(3). Moreover, “[a] party is deemed to have consented to a communication being recorded when another party has announced in an effective manner that the conversation would be recorded.” State v. Townsend, 147 Wn.2d 666, 675, 57 P.3d 255 (2002) (citing RCW 9.73.303(3)). Additionally, “a communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded.” Townsend, 147 Wn.2d at 675.

In Ptah, Ptah moved to admit the content of eight telephone calls he recorded from his cell phone. See State v. Ptah, No. 78978-3-I (Wash. Ct. App. June 1, 2020). Seven of the calls involved Seymour. Ptah claimed that he announced to Seymour in an effective manner that he recorded all of their telephone calls. He pointed to one recording of a call with Seymour in which he complained about a conversation he had with his son’s mother as evidence that Seymour consented. In that call, he told Seymour to “`hear this conversation'” with his son’s mother and then said, “`You know my phone records everything.'” Seymour replied, “`Ah, shit.'” However, during a defense interview, Seymour explained that she thought Ptah’s comment about recording calls on his phone referred to only his conversations with his son’s mother. The court concluded that she was not aware that Ptah recorded her conversations with him as well, and decided that Ptah failed to establish that Seymour consented to the recording of her conversations. The court held that Ptah’s comment to Seymour in the context of a contentious conversation with his son’s mother was not an “effective announcement that he recorded all calls with Seymour. RCW 9.73.030(3); Townsend, 147 Wn.2d at 675. And the undisputed evidence showed that Seymour did not know that Ptah recorded their calls. Townsend, 147 Wn.2d at 675. The court concluded that because Seymour did not consent to the recordings, they were inadmissible under RCW 9.73.050.

Therefore, the easiest way to get consent is to clearly inform the other party and continue to record. If there is a meeting that was scheduled that you think you should record, ask the employer in writing if you can record the conversation. Obviously, you likely won’t be able to catch your harasser doing much, because they will try to hide their behavior. But this is just one way, and there are other ways to keep the element of surprise.

4. What counts as a “private” or “secret” conversation? What counts as “consent”?

Under Washington law, communication is private when parties manifest a subjective intention that it be private and where that expectation is reasonable. State v. Kipp, 179 Wash.2d 718, 729, 317 P.3d 1029 (2014). Proof of subjective intent need not be explicit. Id. at 729. When analyzing alleged violations of the Privacy Law, courts consider (1) whether there was a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit, and (4) was done without the consent of all parties to the private communication. State v. Townsend, 147 Wash.2d 666, 672-75, 57 P.3d 255 (2002).

The Privacy Law does not define “private” but the courts have adopted a dictionary definition, stating: “`belonging to oneself … SECRET … intended only for the persons involved (a = conversation) … holding a confidential relationship to something… a secret message: a private communication… SECRETLY: not open or in public.'” Kipp, 179 Wash.2d at 729, 317 P.3d 1029

In Racus, text messages were being recorded by a third party, the police, on a computer, while Racus thought he was just texting “Kristl”. The court noted, that:

Racus thought he was texting “Kristl.” He manifested his subjective intent that the text messages would remain private by not using a group texting function, or indicating in any other manner that he intended to expose his communications to anyone other than “Kristl.” The expectation that these were private communications was reasonable given that Racus was only texting with “Kristl” and only “Kristl” was texting him back. Because he intended that the communications be kept private and his expectation that they were private communications was reasonable, the communications were private under the WPA.

See State v. Racus, 433 P.3d 830, 836 7 Wn. App. 2d 287 (Div. II, 2019). (Internal citations omitted). Therefore, consent can be implied by the circumstances, if the person being recorded has a reasonable expectation that the conversation will be recorded. For example, a person consents when they explicitly announce their intention to engage in the communication, as discussed above. RCW 9.73.030(3). But a person also consents by choosing to communicate through a device in which the person knows the information will be recorded. State v. Racus, 7 Wash. App. 2d 287, 299-300, 433 P.3d 830, review denied, 193 Wash.2d 1014, 441 P.3d 828 (2019). When a person sends e-mail or text messages they do so with the understanding that the messages would be available to the receiving party for reading or printing. Racus, 7 Wash. App. 2d at 299, 433 P.3d 830.

For example, in Townsend, the police recorded and tracked a defendant’s e-mail and instant messages to a fictitious adolescent girl that police created for a sting operation. . State v. Townsend, 147 Wash.2d 666, 670, 57 P.3d 255 (2002) The Washington Supreme Court held that although the defendant did not explicitly announce that he consented to the recording of his e-mail and instant messages to his fictitious target, his consent to such recordings could be “implied.”

[b]ecause [the defendant], as a user of email had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages.

Id. at 676. The court noted that “the saving of messages is inherent in e-mail and … messaging” and through his use and familiarity of such systems, the defendant had impliedly consented to the recording of such messages. Id. at 678. Therefore, in the instance of text or email, it is likely that the harasser has implictly “consented” because they have reasonable expectation that their conversation is being recorded, and therefore their consent is “implied”.

Even in a situation where the person that was being recorded used passwords and encryption software, the court will still conclude that emails, text messages, and other electronic data is not private. State v. Canter, 487 P.3d 916 (Ct. App. 2021). In Canter, the person being recorded had secured several devices by passcodes and encryption software, so officers were unable to recover the text or e-mail conversations from them. However, the court concluded that despite the passcodes and software, that he “had to understand that messages he sent from his laptop or cell phone to another similar device would be recorded.” The Court ruled that using “passcodes and encryption software to protect recorded data on his devices corroborate[d] his knowledge” and by “using messaging devices that necessarily record data, Canter implicitly consented to the recording of his conversations.”

Therefore, it may be possible to record text messages, emails, or other written communication where, according to Washington law, there is no expectation of privacy or where consent to record is implied.

5. What if I don’t get “consent” but I am threatened with some kind of bodily harm? Can I still record my harasser?

One of the most import exceptions to the Privacy Law is the “threat” or “bodily harm” exception, where a recording of a private communication can be admissible without consent, if the person being recorded is conveying a threat or similar communication. The Privacy Law allows for recording private conversations without consent if they are “communications or conversations … which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” RCW 9.73.030(2). Thus, if a party “conveys” a threat, this exception allows recording of a threatening communication with only one party’s consent. See RCW 9.73.030(2)(b). This exception is “construed broadly.” See IN RE: THE PARENTAGE OF KR, No. 53183-6-II (Wash. Ct. App. Nov. 9, 2021). In other words, if someone’s threat is “conveyed” or even “discussed” it can be recorded legally, and the recording can be admissible. See State v. Caliguri, 99 Wash.2d 501, 507-08, 664 P.2d 466 (1983); State v. Babcock, 168 Wash. App. 598, 609, 279 P.3d 890 (2012).

In Gearhard, the prosecution argued that the defendant’s simple request for a witness to lie or not to testify against him, was enough to be an “unlawful request” and therefore, the private recording was admissible. The defense argued to the contrary, that it was not a threat, and therefore it did not fall within the exception, and was not admissible. The court ultimately concluded:

“[We] conclude that Mr. Gearhard’s statements during the conversation do not fall within the exception, however. He did ask J.C. to lie, but in the context of expressing fear and hinting at a reward—considered as a whole, it was in the nature of a request, or more aptly a plea, for a favor. It was not of a similar nature to a threat of extortion, blackmail, or bodily harm.

State v. Gearhard, 465 P.3d 336, 339 13 Wn. App. 2d 554 (Div. III, 2020). Thus, in order to fall within this exception, it must be a threat of bodily harm or something similar, that equates to an exception of the Privacy law.

In Valdiglesias LaValle, the defendant conveyed a threat in the “planning stages” of commmiting a crime. The recording portrayed what Valdiglesias was teaching to a conspirator what was needed to poison someone and cause him to die, and told the coconspirator not to tell anyone. This was enough for the court to exempt the recording from the privacy law, because it “conveyed a request that is of a similar nature to a threat of bodily harm— the poisoning to death of [the victim]. Id. at 663.

In Abbott, the recording demonstrated that the defendant yelled at the victim stating that he “should end [her] fucking life now.” State v. Abbott, No. 83558-1-I (Wash. Ct. App. Apr. 10, 2023). When his mother attempted to intervene, he continued to make statements proposing violent acts toward Pyper, saying he was “about to stomp her fucking head in,” and “about to just kill her and fucking bury her.” Pyper testified that the threats occurred in the context of a violent physical altercation, during which Abbott wrapped his arm around her neck from behind and pulled her out of chair. He tightened his grip and she could not breathe. He also kicked her in her ribs and back. A reasonable person in Abbott’s position would foresee that threats, made while kicking and strangling Pyper, would be interpreted as a serious expression of his intent to inflict bodily harm on her. The statements constituted true threats. Thus, the court concluded that the recording was properly admitted under the threat exception.

In Thrasher, Mr. Todd Thrasher appealed a Domestic Violence Protection Order, protecting his teenage children and his ex-wife, Holly Thrasher. Thrasher v. Thrasher, No. 81277-7-I (Wash. Ct. App. Apr. 19, 2021). Holly’s petition for a protection order stemmed from an incident during which Todd punched their teenage son and subsequent telephonic threats Todd made to Holly which she recorded without Todd’s consent. Todd contended the recorded conversation was inadmissible and his conduct did not rise to the level of domestic violence.
The Thrasher Court noted that Todd’s statements during the recorded phone call indicated his intent to intimidate Holly into abandoning her allegations that Todd hit their son. When Holly suggested Todd take a break from the kids and that the kids were scared, Todd told Holly he would “come down there and I’ll fuck you up so bad with fucking your little Nordstrom bullshit.” The content of Todd’s comments suggested he was threatening to reveal some confidential or private information regarding the parties’ divorce to Holly’s colleagues or her superiors in order to diminish her reputation. And he tied his threats of disclosure to his demand that she stop alleging that he hit P.T.—he told her “I didn’t fucking hit him. And if you say it again, I’ll fucking (inaudible) you fucking bitch” within minutes of threatening to reveal private information to Holly’s colleagues at Nordstrom. Moreover, Holly testified she recorded the call because she was concerned about Todd’s “really off-the-wall, threatening text messages” and wanted to be prepared in case he threatened her again. Under these circumstances, the court concluded that the recording was lawful an admissible.

And in State v. Caliguri, the Supreme Court considered whether conversations in four recordings where the defendant discussed the logistics of an arson were admissible under the threat exception because the defendant acknowledged that a janitor `for sure’ would be killed in the fire. 99 Wn.2d 501, 504, 664 P.2d 466 (1983). The defendant argued that the threat exception did not apply because his words did not actually convey a threat. Id. at 507. But the court reasoned that because the conspiracy and underlying request to help set the fire were ultimately about committing murder, obviously a crime involving great bodily harm, “any conversation `convey[ing]’ the request is squarely within the scope of RCW 9.73.030(2)(b).” Id. (alteration in original). Therefore, the court concluded that the recordings of the discussions of the arsons that would lead to a death fell into the threat exception, and the statements were admissible.

In Tayler, the person recording, “R.R.” recorded her interactions with Tayler for seven hours in two separate recordings. Although she initially recorded Tayler without his consent, after approximately an hour and fifteen minutes, R.R. told Tayler that she was recording him, to which he responded “Good, record away, I don’t give a f–k.” Tayler also conceded the recording captures him explicitly threatening R.R. Tayler told R.R. that he could “come over there and grab [her] by the throat,” that he “will touch [her] all [he] want[s],” and that he could make her stay in the trailer against her will. These statements were admissible as explicit threats of bodily harm. The court relied in explicit threats as well as implicit threats. For example, the court relied on Tayler’s rage toward and domineering control over R.R., combined with his profanity, ridicule and derision, put the explicit threats into context. Throughout the recording Tayler mimicked R.R.’s screams of pain and mocked her when she cried. He screamed into R.R.’s ear, and then asked if she wanted him to do it again. When R.R. attempted to find a garbage bag for her belongings, Tayler angrily said “Watch your hand[,] don’t get it slammed in the door there. Now be careful because these doors close sometimes unexpectedly” after which the recording picked up the sound of Tayler slamming cupboard doors. Tayler’s statements, when considered in light of his conduct, indirectly suggested or implied threats to R.R.’s physical safety. The court therefore concluded that these recordings were exempt from the Privacy Law, and were admissible as evidence. Additionally, the recording was peppered with non-conversational sounds of physical assaults, screaming, and general violence, all falling outside the scope of the Privacy Act. See also State v. Smith, 189 Wn.2d 655, 664, 405 P.3d 997 (2017).

CONCLUSION

Consult with Colin F. McHugh, Our Experienced Vancouver Washington Employment Attorney About Your Workplace Sexual Harassment Today!