By now most people have either learned about or have listened to the audiotapes purporting to feature long-time television good guy, "7th Heaven" actor Stephen Collins, allegedly confessing to various criminal sexual acts against multiple underage girls. On the tapes Collins admits to exposing himself to two unnamed girls and adds that he may have also taken one girl's hand and forced her to touch him. Collins confessed these misdeeds in 2012 - to his wife, Faye Grant, who recorded them secretly during marriage counseling sessions at a therapist's office (it's unclear whether the session occurred in New York or Los Angeles) where Collins thought he was getting treatment, in part, to address his behavior.
Last week Grant released the recordings in a move that many argue was the result of a strategic decision within an already difficult divorce case. That may be so, but the more pertinent legal questions to examine surround Collins' confessions: Was it legal to record Collins in the first place? Does the therapist bear any legal responsibility for failing to uphold Collins' privacy since the recording took place in his/her office? Can Collins' victims press criminal charges, or has the statute of limitations run out? Do his words amount to a confession within the eyes of the law? Could Collins face charges for any of what is contained on the audiotapes?
There are no easy answers in this case, so let's review them separately:
Was it legal to record for Collins' wife to record him?
Recording individuals without their knowledge is a tricky thing within the United States since laws vary by state. New York, for instance, is a "one-party consent state," meaning that as long as one party has consented to the recording or is one of the parties to the recorded conversation, the recording is legal [See NY Penal Law Section 250.00(1)]. California, however, is a "two-party consent state." Therefore, both parties must consent to a recording unless it is made for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of any felony involving violence against another person (See California Penal Code Section 633.5). That last part is key. So far, not a single victim has come forward. If that continues to be the case, Collins' defense attorneys in California will have an argument that the tapes were obtained illegally and therefore cannot be used as evidence.
Does the therapist bear any legal responsibility for failing to uphold Collins' privacy since the recording took place in his/her office?
It is very unlikely that there is any criminal or civil liability on the part of the therapist here. So far, the assumption has been that Grant secretly made these tapes; it follows, then, that the therapist, like Collins, would not have known the session was being recorded. If that's the case, the therapist cannot be held responsible for violating patient privacy expectations. The possibility exists, however, that Collins knew the sessions were being recorded. Many therapists - especially marriage counselors - encourage troubled couples to record their sessions so they can review them later at home. If Collins actually consented to these particular recordings, his lawyers can no longer raise the argument that they were made unlawfully and they are therefore admissible as evidence in court.
Can his victims press criminal charges or have the statuette of limitations run out?
To begin with, it is not clear which of these alleged crimes occurred in New York or California but there is no doubt that location may decide whether a case will go forward against Collins. The statute of limitations, or the time in which one must prosecute a crime, differs in the two states. From what little we know, it seems the acts at issue occurred in the late '70s and early '80s. For crimes including forcible touching, there is a five-year statute of limitations in New York that begins after a victim turns 18 (See NY Crime Pro Law 30.10 and NY Penal Code 130.52). While we don't know the victim's age, it is fair to assume that the statute might have passed. It is also important to note that the statute of limitations that applies is the one in effect at the time of the crime. Prosecutors would have to know the year the alleged crime took place to ensure that the law, as it was written and upheld at the time, has not changed since then.
If the acts occurred in California the prosecutors will have an easier time going after Collins but would still likely fail. California has a much longer statute of limitations - 10 years after the victim reaches the age of majority, or when she is 28 [See CA Penal Code Section 801.1]. Although it's probable the window has already shut tightly, California law does contain a loophole: if certain conditions are met, the statute can extend to one year after the date of a report by the victim [See CA Penal Code Section 803(f)]. In this case, Collins' wife and not one of his alleged victims (as far as we know) has reported the act to California authorities, so there may be a glimmer of hope for prosecutors with regard to bringing suit within the statute-of-limitations timeframe.
Do Collins' words amount to a confession within the eyes of the law?
Regardless of which state decides to move first, the nature of Collins' crimes must be considered for prosecution. Collins' crimes have been described as "molestation," but definitions are extremely important in the eyes of the law. For instance, if Collins exposed himself without any touching involved, the act - as far as New York law sees it - may be classified as "an offense against public sensitivity" rather than "molestation" [See NY Penal Code Section 245], which carries a shorter statute of limitations and a lighter sentence.
Could he face charges for any of what is contained on the audiotapes?
Ultimately, successful prosecution will depend on whether any victims come forward. This may be the only way to overcome not only statute-of-limitations issues but also a common law rule called corpus deliciti, which is Latin for "body of the crime." As it applies to the law, the term means that a crime can only be prosecuted if there is actual proof that it occurred in the first place. A confession all by itself is not enough. After all, people confess to crimes they did not commit for all sorts of reasons, involving everything from mental illness to protecting the truly guilty party. In California, Collins' confession could not be admitted to a court unless the prosecution was also able to introduce independent evidence of the crime, such as the alleged victim - always the best source of independent evidence - coming forward. New York law provides prosecutors a little more leeway in this regard and follows the corroboration rule, which is a lower standard and easier for the prosecution to meet.
While laws are of course meant to protect victims, they are also designed to protect the falsely accused. In America, we are all innocent until proven guilty and to uphold that standard the burden of proof must therefore remain substantial. Given such a standard - unfortunately - it is the case that offenders often slip through the cracks. That may be the case here, but while such an escape from punishment may arouse our deepest sense of anger and injustice, we can rest assured that the court of public opinion has rendered harsh judgment against Collins. He will continue to face the consequences of his alleged crimes on a daily basis and for the rest of his life.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
