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Mass. bill would allow domestic violence victims to secretly record their abuser

After a woman in his district was criminally charged for secretly recording her husband, who she said was abusive, a South Shore lawmaker has filed a bill that would allow victims to record someone committing a crime against them.

"To be able to have that physical evidence that's literally at your fingertips — that shouldn't be criminalized, it should be utilized by our judicial system," said state Sen. Patrick O'Connor.

In Massachusetts and some other states, it's illegal to make an audio recording of someone without that person's consent. The Weymouth Republican's bill would provide "a defense to prosecution for violations of the wiretap law" for recordings made "to make a record of threats, harassment or other crimes."

He said several people have reached out to him to testify in support of it, including other women who say they were secretly recording their partners out of fear.

One of these women told 5 investigates: "I recorded for proof of the abuse and harassment."

Another told 5 Investigates: "I was in fear of losing my life to a person who tried to convince everyone that he was a doting father and loving husband."

The woman, who like the other, spoke on the condition of anonymity, said she made the recordings to document what she calls "emotional and psychological torture"

She said she didn't realize until afterward that the recordings were illegal and could not be used in court. As a result, she said, "no one took my accusations seriously."

"(T)he last thing I was thinking about was the law. The only thing I was thinking about was the safety of myself and my children," she said.

The issue came into public view after 5 Investigates reported on the case of Shauna Fopiano, who was charged with eight felony counts of illegal wiretapping for making recordings of her husband. He was charged with domestic violence last year, but those charges were dismissed in November when she declined to testify. Shauna's charges were also dismissed.

"If there's nothing on our books right now, we have to do something to make sure what happened to Shauna never happens to anyone else again," O'Connor said.

O'Connor said he worked on the language for the bill with Plymouth County District Attorney Tim Cruz, whose office arraigned Fopiano on the charges.

A spokesperson for Cruz said the DA's office proposed the bill to O'Connor while they were discussing another domestic violence-related bill.

The spokesperson said in a statement: "Oftentimes people who are in highly charged relationships and dangerous situations, due to divorce or child custody proceedings or disputes, or who have active restraining orders are the recipients of threats of harm and death, and of contact and communications which violate orders. Yet the victims of these threats and harassment are prevented from using such recordings in judicial proceedings either to secure their rights, protect their children, or to protect themselves, due to fear of prosecution for making an unlawful recording. Indeed, when the victims do make use of such recordings, the perpetrators of the threats or restraining order violations will seek criminal charges to punish the victim. This amendment is designed to alleviate the fear of disclosing recordings of threats and restraining order violations, and to empower victims to protect themselves and their children by making recordings that can then be used in judicial proceedings against the perpetrator."

O'Connor said: "This shouldn't be something that anyone who's suffering domestic violence should be afraid to do. We have this unbelievable wealth of technology literally at our fingertips now. And to restrict that and not only restrict it, but to criminalize it, I thought was something that Massachusetts should absolutely change."

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