Defense Tries Same Tactics Again : Batey’s Lawyers Seek to Argue Child Stealing Was Justified

Lawyers for Betty Lou Batey, the fundamentalist Christian who hid her young son from his homosexual father for 19 months, asked a San Diego County Superior Court judge Monday to let them argue that Batey’s actions were justified to protect the boy from drugs, sex and violence.

Nearly five years after Batey disappeared with the child after losing custody to her ex-husband, Frank Batey, she is on trial this week on felony charges of child stealing.

Judge Douglas Woodworth’s impending ruling on the defense request will help determine the degree to which the trial becomes a rerun of a hearing 2 1/2 years ago in which Betty Batey was found guilty of civil contempt for defying a custody order when she went underground in August, 1982, with the couple’s son Brian, then 11.

In that case and related hearings, Michael Farris--the attorney supplied for Batey by Concerned Women for America, a Christian group headed by fundamentalist activist Beverly LaHaye--quoted the Bible and presented testimony from purported experts on homosexuality to justify the San Diego woman’s actions.

On Monday, Farris told Woodworth he again wanted to employ a “necessity” defense to prove that, while Batey may have broken a law, she was justified in doing so out of the reasonable expectation that she was protecting her child from imminent harm.

Brian had told her he had seen his father engaged in intercourse with his homosexual lover at their home in Palm Springs, had been given alcoholic beverages at the house and had been exposed to illegal drugs, Farris said. The boy also said he was being encouraged to swim naked in a pool with homosexual men, the lawyer said.

“He was a live target for rape, and for the disease that could follow the rape,” Farris said. “You go ask people in the streets of San Diego what they would do under these circumstances, and the vast majority would say, ‘I’d do what Mrs. Batey did, court order or no court order.’ ”

But Deputy Dist. Atty. Robert Boles contended that the circumstances of the child-stealing incident did not justify use of the defense. Precedent-setting cases, he said, have established that necessity can be claimed only when an emergency existed, when there were no alternatives available and when the harm resulting from the illegal act was less than the harm it prevented.

In the Bateys’ situation, there was no emergency, Boles said, because Brian had occasionally visited his father without any harm coming to him while Betty Batey still had custody of the boy. According to Boles, moreover, she overlooked alternative courses of action, such as appealing the family court ruling that shifted custody to her ex-husband.

Finally, the prosecutor said, “The court should find there’s a greater harm in stealing a child, and breaking the law, then having a child be placed with his father, be he homosexual or not.”

Allowing Farris to present evidence about Frank Batey and about homosexuality in general would wrongly shift the focus of the case away from Betty Batey, Boles said.

“It’s putting, really, the victim--the father’s life style, his right to be homosexual--on trial, and that’s inappropriate,” he said. “The assumption by the defense is that this alternative life style is going to cause some physical harm to this young man. I don’t think there’s any facts to support that.”

Farris argued that a jury should be allowed to weigh the importance of the apparent legal violation against the moral concerns behind Batey’s actions.

“This is exactly the kind of thing the conscience of the community, the jury . . . is entitled to judge,” he said.

Woodworth withheld judgment on the issue, but is expected to rule on it when the trial resumes today. Betty Batey faces a maximum sentence of three years in prison if she is convicted.

The Bateys were married in 1969, when both were members of the United Pentecostal Church in San Diego. Brian was born in 1971, and the couple was divorced in 1975. Betty Batey initially won custody of the boy, but a judge transferred custody to the father when she refused to allow Brian to visit him.

Jailed for 2 Weeks

She spirited Brian out of San Diego during their first weekend visit after the custody shift, then disappeared with the boy for 19 months before surrendering to the FBI in Denver in April, 1984.

Because she spent two weeks in jail for civil contempt, Batey’s lawyers challenged the right of the district attorney’s office to go forward with a trial on child-stealing charges, claiming that it would subject her to double jeopardy. A Superior Court judge agreed in 1985, but a state appellate court reinstated the charges and the U.S. Supreme Court refused in March to block her trial on the felony counts.