Prosecutors in Virginia have dropped criminal charges against a mother who sent her 9-year-old daughter to school with an audio recorder in her backpack to see if the child was being bullied.
Sarah Sims was charged with interception, disclosure of wire, electronic or oral communications, a Class 6 felony, and contributing to the delinquency of a minor, a Class 1 misdemeanor, following a September incident at Ocean View Elementary School in Norfolk. CNN reported earlier this week that Sims gave her fourth-grader a recorder to capture evidence that her classmates and teacher were bullying her.
Officials at the school found the device and confiscated it, Sims said. The 47-year-old was charged in early November following an investigation.
But “after reviewing the facts and circumstances” of the case, the Office of the Norfolk Commonwealth’s Attorney said Wednesday that the agency has decided to not prosecute Sims.
Sims told CNN that she had repeatedly contacted school officials about concerns that her daughter was being bullied. Because the school had yet to respond to her, she said she decided that capturing evidence of bullying was her only choice.
“I was hoping to get a good idea for the environment of the classroom. … I thought it would be a good idea to do it on my own,” Sims told CNN’s Don Lemon on Monday.
Sims’s lawyer, Kristin Paulding, was not available for comment Tuesday, but she told CNN the charges were excessive. A Class 6 felony in Virginia is punishable by up to five years in prison. A Class 1 misdemeanor carries a punishment of up to a year in jail.
“I was appalled when I heard these charges. I’ve been practicing criminal law for 10 years, and I was shocked to see that the school would decide to go to the police department and ultimately charge this mother as opposed to sitting her down and having just a simple conversation about what were her concerns and how could the school alleviate those concerns,” Paulding said.
“Sarah had a concern that her daughter’s teacher may have actually been speaking inappropriately to her,” Paulding told CNN.
Thomas Shattuck, an investigator for Paulding’s law firm in Virginia Beach, said that someone, presumably the teacher, found the recorder on the child’s desk and confiscated it. School officials then called the city attorney’s office, which then called the police department. A police officer later interviewed the child without Sims’s knowledge.
Shattuck said that was troubling.
“Nine years old is awfully young for a detective to question a child without the mother’s consent, especially if the mother is the target of the investigation,” Shattuck told The Washington Post. “You’re essentially asking the daughter to testify against her mother.”
Shattuck also said they have yet to find out what’s in the recorder and suspect it may have captured something important.
“Our concern is that they heard the recording and called the city attorney’s office,” he said. “If it was just a blank recording, why call the city attorney’s office? We’re very curious with what’s in the recording.”
Shattuck acknowledged that the recorder was against school policy but said it does not amount to a felony.
Norfolk Public Schools spokeswoman Khalilah LeGrand declined to comment and referred questions to the Norfolk Police Department.
The police department said in its brief statement that Sims was charged on Nov. 6 as a result of an investigation that began on Sept. 29 and that it will have no further comment. A spokesman said Sims was given a bond and released.
Virginia as well as 37 other states and the District of Columbia have one-party consent laws, which allow individuals to record phone calls and conversations they’re a part of or when one party consents. In 11 other states, every party to a phone call or conversation should consent to a recording.
Shattuck said he believes Virginia’s one-party consent law applies to the case.
“The 9-year-old was aware of the recording device. . . . She’s the one party,” he said.