Writings and observations

Legal across the Columbia

courtsThe Washington Supreme Court released a decision last week that, while getting not a glimmer of the explosive attention of the same-sex marriage decision that preceded it by several days, is at least as striking and maybe more so. It says that because a certain thing is legal across the border in Oregon even though not in Washington, the fruits of that action can be used in a Washington court.

Put that way, you might get the impression the court was reaching. Our impression is that it wasn’t, that it made good sense. But the implications are provocative.

From the decision in Washington v. Alexander Leonard Fowler, here’s the court’s quick summary of the circumstances.

Petitioner Alexander L. Fowler was convicted by a jury of two counts of incest in the first degree, two counts of incest in the second degree, and one count of rape in the second degree, all stemming from sexual misconduct with his stepdaughter. Fowler asserts that the trial court erred by admitting into evidence recordings of two telephone conversations he had with the victim. The conversations were recorded in Oregon with the consent of and by the victim acting at the request of the Oregon police when they investigated Fowler’s possible sexual misconduct. Fowler was in Washington when he spoke on the phone to the victim, and he did not consent to the recordings; the victim was in Oregon at her family home.
Under Oregon law it is permissible for one party to consent to a recording of a telephone conversation. In Washington, unless an exception applies, it is generally unlawful to tape record a telephone conversation with only one party’s consent under the privacy act, chapter 9.73 RCW. Generally, all parties must consent to a recording in Washington. Based on Washington’s privacy act, Petitioner claims that the recordings of the conversations in Oregon were unlawful under RCW 9.73.030 and were therefore inadmissible in court under RCW 9.73.050. We hold that the recording of conversations in Oregon did not violate RCW 9.73.030 and were thus not
barred from admission. Accordingly, we affirm petitioner’s conviction.

State lines matter.

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