A Massachusetts Crime Scene: Audiotaping Sex?

In the sad and messy wake of former Rutgers University student Tyler Clementi’s suicide death after his roommate Dharun Ravi, surreptitiously videotaped a sexual encounter between Clementi and another man, a more local twist on this type of case has cropped up in Boston. Thankfully, this case does not involve a suicide, or even any physical harm. But the case has dredged up a lot of interesting questions here in Massachusetts.

What’s it about? It seems that one Jaryd Rudolph, a 19 year-old football player at Boston College (full disclosure: my alma mater,) allegedly secretly audiotaped a “sexual encounter” that one of his football player roommates was having with a female graduate student in the dorm suite that the men shared. The audiotape, reportedly containing “sexual noises” made by the roommate and his girlfriend, was allegedly made available to some other people, and now young Rudolph may not be playing in any reindeer games, or at least any BC football games, anytime soon. (Sorry, but I couldn’t resist – it would be better humor if this were December.) The case has been reported around the country, including CBS News. He’s been suspended from both the football team and the school, and required by the school to undergo “educational training and counseling,” quoting a press statement from Boston College. BC characterized Rudolph’s and his girlfriend’s conduct as “inappropriate.”

Oh, one other thing: Rudolph is now a criminal defendant in Massachusetts. You see, he’s been charged with violating the violating the Massachusetts wiretapping statute (Mass. Gen. Laws Ch. 272, § 99.)

The “similarities” between the Rutgers tragedy and this matter begin and end with college students and invasion of privacy issues – I don’t mean to create any more parallels than that, because doing so would be plainly wrong. But this statute carries potential penalties following a conviction, of up to two years in jail or a fine of not more than five thousand dollars, or both. As a Boston, Massachusetts criminal defense lawyer, I’d say that’s some pretty stiff penalties for recording some heavy breathing. What makes this prosecution even more arguable, is the original intent of this statute: It was originally created to clarify allowable telephone wiretapping of organized crime and the mob, by the government. For almost all other secret wiretapping of phone calls – those that did not involve law enforcement and government agencies – the statute made it a crime to secretly record phone conversations without the knowledge or consent of the person being recorded. Eventually, this statute – even though it was originally crafted for phone conversations – expanded to other communications. Now it’s being used against this college kid.

A wiretapping statute being used to prosecute a college prank? This case begs the question: When does embarrassing someone become a crime? I’ll grant you that what Rudolph did was rude and boorish, but a crime? Are we as a country criminalizing conduct that should be just scolded? Above The Law, an interesting legal blog I read, raised the same question.

As a Dedham, Massachusetts sex crimes attorney, I see some awful stuff in the arena of sex offenses, including rape and aggravated rape – and this case seems just seems to be a prosecutorial tempest in a teapot.

It seems to me that Rudolph’s punishment should be both academic and social in nature – specifically, a total lack of interest by the women on campus, or “dates,” for the remainder of the school year. If anything will teach this jock a lesson, that should. Learn the lesson, mind your own business in the future, and call it a day.