Initial outrage over the Mel Gibson tapes (“Threaten you? I’ll put you in a fuckin’ rose garden!”) has now died down enough for the inevitable question to arise: Was it even legal to record that filth?
California, like Nevada, is an “all party consent” state, which means you can’t legally record a phone call without first getting permission from everybody on the line (unless you’re a cop with a court-authorized wiretap).
But, California also has a penal code exception to the rule, which states that it may be acceptable for a person to secretly record a phone conversation if they are being threatened with “kidnapping, extortion, bribery or another felony involving violence”—territory Gibson covered with madman finesse.
Nevada does not have this same exception, which means that recording a phone conversation with your psychotic husband/wife/partner/neighbor/mother isn’t wise. (Local police say they have techniques to legally capture threatening communications, and will gladly describe them to victims in private—they don’t want to give away any tricks.)
Nevada legal experts do note that federal law allows for “one party consent,” or secret recording of tapes—but most domestic violence cases don’t end up in federal court.
And even in California, a judge is still going to have to rule on whether the Gibson tapes are admissible in court—whether the ranting actor met the standards for threatening behavior. And in the meantime, Gibson could certainly sic a bunch of high-priced attorneys on his former girlfriend, arguing the tapes were recorded illegally, or doctored, or anything, really.
Of course, who cares if the Gibson tapes are never played before a judge, and who cares if they actually weren’t legal to record? In the court of public opinion—more meaningful to an actor than any state courtroom—we’ve already ruled.