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TIME: Almanac 1990
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1990 Time Magazine Compact Almanac, The (1991)(Time).iso
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091889
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09188900.014
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1990-09-17
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ETHICS, Page 66A Hard Case of ContemptElizabeth Morgan: Mother Courage or a paranoid liar?
To her supporters, including Texas billionaire H. Ross Perot
and the National Organization for Women, she is Mother Courage
personified. Dr. Elizabeth Morgan, 42, a plastic surgeon, has spent
two years in jail -- without benefit of trial -- for civil contempt
of court. Her offense: refusing to disclose the whereabouts of her
daughter Hilary, now 7, to Washington Judge Herbert B. Dixon Jr.,
who had ordered unsupervised visits with her ex-husband, oral
surgeon Eric Foretich, 46, whom Morgan charges with sexually
abusing the child.
To her critics, Morgan is a paranoid liar who has invented the
rape charges out of malice against Foretich; her defiance of
Dixon's order, they argue, is a sign of obsession, not maternal
devotion. To ethicists and legal scholars, the case raises some
troubling questions: Should there be time limits on a judge's right
to jail a person for civil contempt? Does a parent, where
suspicions of sexual abuse exist, have a moral right to defy the
courts to protect a child?
Morgan's ordeal should soon be coming to an end. Last week the
Senate passed a bill that sets a one-year limit on the length of
time an individual in a child-custody case can be jailed for civil
contempt in the District of Columbia without facing trial for
criminal contempt. Morgan could be freed once the Senate bill is
reconciled with somewhat broader legislation previously passed by
the House. Meanwhile, on Sept. 20, the full District of Columbia
Appeals Court is set to hear oral arguments on a ruling last month
by a three-member panel of the bench. The panel decided that
Dixon's civil-contempt charge had lost its power to coerce because
of the length of time Morgan had spent in jail.
Hard cases, an old saying has it, make bad law, and this one
has all the ingredients to bear out that adage: a stubborn judge,
two embittered parents and a child torn between them. Morgan met
Foretich in 1981, while he was separated from his second wife,
former model Sharon Sullivan. After a whirlwind affair, during
which Morgan became pregnant, the couple flew to Haiti, where
Foretich obtained a quickie divorce. But his marriage to Morgan
broke up after only five months, scarcely a week before Hilary was
born.
Morgan was granted custody of Hilary, and Foretich obtained
liberal visitation rights, but squabbling over the child continued
after their divorce. The case was transferred to Dixon's
jurisdiction in November 1985; subsequently, Morgan three times
charged Foretich with sexually abusing their daughter and demanded
that the court curtail his visits. Each time, Dixon ruled that
Morgan's proofs were "inconclusive." She and her attorneys complain
that he refused to allow testimony that corroborated the charges.
She persisted. Alleging that Hilary was frightened at the
prospect of staying with her father, Morgan began to deny him
visitation rights. Foretich responded by asking Dixon to hold her
in contempt for disobeying the court's orders. Meanwhile, as the
complex legal skirmishing continued, Sharon Sullivan accused him
of sexually maltreating their daughter Heather, now 9. Foretich
successfully took several lie detector tests to deny the charges,
and was cleared of them by a Virginia court. In August 1987 Dixon
ordered that Foretich be allowed an unsupervised two-week visit
with Hilary. Morgan contends, and a psychotherapist she consulted
confirms, that the child displayed "suicidal behavior" following
previous visits, an allegation that Foretich firmly denies. After
a U.S. district court rejected her plea to bar the visit, Morgan
placed her daughter in hiding. (Morgan's parents simultaneously
disappeared from view.) On Aug. 28, 1987, Dixon ordered Morgan to
jail until Hilary was produced.
Judicial experts agree that contempt is one of the courts' most
powerful and vital weapons. It is an essential means of enforcing
a judge's rulings and coercing testimony from recalcitrant
witnesses. Civil contempt is used to compel future behavior, while
criminal contempt is used to punish past conduct. Wisconsin has
time limits on civil-contempt sentences similar to the one that
Congress is seeking to impose on the District of Columbia courts.
One advocate of such limits is professor Robert Martineau of the
University of Cincinnati College of Law. "If you refuse to comply
with the order of the court after a certain period of time," he
says, "you've clearly indicated that you are not going to comply.
Keeping a person in jail after that simply becomes punishment."
Opponents of the congressional bill include, to the surprise
of some, the local chapter of the American Civil Liberties Union,
which argues that Morgan has not yet exhausted the appeals process.
Beyond that, say critics, the proposed law would hamper judges in
trying to compel errant fathers to provide alimony and child-
support payments. Others charge that the bills are either too
limited, since they apply only to the District of Columbia courts
and not to the entire federal judiciary, or that they attempt to
solve a nonproblem. Sheila Macmanus, an expert on juridical
discipline, notes that of 254 alleged cases of judicial abuse
between 1986 and 1988, none involved civil-contempt charges.
Was Morgan justified in defying the judge? "Legally, no," says
Martineau. "When there's a conflict between a person's ethical and
moral views and what the courts say, the courts must prevail, or
we have anarchy." Law professor David Chambers of the University
of Michigan demurs. "Parents who put their child first are doing
what we expect all parents to do," he says. But Chambers does
wonder whether "spending the rest of your child's minority in jail
is a better thing for this child than to have yielded to the court
order."
Morgan, however, has no doubts as to the rightness of her
actions. "For the average middle-class American," she told TIME
last week, "living in the D.C. jail is a horror. It's dirty, it's
noisy, it's crowded, and you have no privacy. But I chose this
because the middle-class American existence is worthless to me if
my daughter is being raped. The destruction of my child is not
worth any possessions. Just having her safe makes me happy."