Court Adopts Vicarious Consent Doctrine In Case Where Father Intercepted Phone Calls From Pedophile Teacher

State v. Spencer, No. 06-0565 (Iowa August 3, 2007).

In this case out of Marshall County, a father of a young girl became concerned over the attentions being paid her by a schoolteacher and decided to record his home telephone. Conversations between the teen and Spencer, the 42 year old teacher resulted in charges of sexual exploitation by a school employee, indecent contact and lascivious contact.

Spencer moved to suppress the tapes and the product of them abd the district court agreed, finding that Iowa Code Ch. 808B prohibits such recording when either of the parties did not consent. The district court rejected the argument of vicarious consent, and this appeal by the state followed.

The state argued that the recordings did not violate the statute because the father, as guardian was allowed to vicariously consent for his daughter. The court agreed, determining that the question was whether in the absence of explicit statutory language, that the parent or guardian could consent on behalf of the child.

The court found that in order to account for the vulnerability of a minor to impositions and their inability to make sound judgments about certain conduct, Iowa requires a parent or guardian's input. That made the term 'consent' as used in the statute ambiguous.

Because the term was ambiguous, the court had to look to the legislative intent behind the statute and found support for the idea of vicarious parental consent in federal decisions analyzing similar cases in other states.

Considering the weight of authroity that supports the doctrine of vicarious consent and the similarities between the various statutes in places that have adopted it, the court held that as long as the father could show a good faith objectively reasonable basis for believing it was necessary and in the best interest of his child to consent to taping the conversations on her behalf he could consent on her behalf.