My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.
Virginia's wiretapping law is a "one-party consent" law. Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Virginia Code § 19.2-62. Therefore, if you operate in Virginia, one may record a conversation or phone call if they are a party to the conversation or they get permission from one party to the conversation in advance.
The wiretapping law covers oral communications when the speakers have an "expectation that such communication is not subject to interception under circumstances justifying such expectations," Virginia Code § 19.2-61, But absent the speakers' justified expecation, the law does not apply. See Belmer v. Commonwealth. Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or restaurant, without consent. However, you should seek the consent of one or all of the parties before recording any conversation that an ordinary person would deem private.
Violation of the Virginia law is a felony, punishable by imprisonment and fine. See Virginia Code § 18.2-10 for more details. In addition, while recording a telephone conversation with the consent of only one party is legal in Virginia, a lawyer’s recording of a telephone conversation without the consent of all parties was found to be unethical under the Virginia Rules of Professional Conduct (United States v. Smallwood).
This is a very interesting circumstance and you might have an argument that the 1 party consent law of Virginia was violated. The mother was not part of the conversation and the child is not of age to give consent. The court could decide that the mother gave consent on the part of her child to record the conversation or that the conversation was public in which there was no consent required to record. I have not seen a case like this but it is something that might go either way for a court. To answer your question, yes you might have recourse but it will hinge on whether the court finds the conversation was public (in front of the entire class probably would be) or if the child’s mother can give consent on the part of the child to the recording. I would obtain a local attorney to pursue a claim or alert the authorities to see if it is something they will prosecute.
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