Jean Elizabeth Morgan v. Eric A. Foretich, Superior Court C.A. No. D 684-83.
It is a case so extreme that the strengths of the legal system have turned into weaknesses. So extreme it may end up savaging that which it was most obligated to protect.
The bare bones are simple enough:
Dr. Elizabeth Morgan, a once-prominent plastic surgeon, trained at Harvard and Yale, the author of several books, including a consumer’s handbook on plastic surgery and the best-selling “The Making of a Woman Surgeon,” has accused her former husband of sexually molesting their 6 1/2-year-old daughter, Hilary.
Hilary’s father, Dr. Eric Foretich, a successful oral surgeon in suburban Virginia, angrily denies he has ever abused his daughter. “How do you think it feels to be accused of the most heinous crime in the world regarding your own child?” he said recently. “It’s the lowest form of filth and slime known to civilized man.”
Judge Herbert Dixon Jr. of the Superior Court of the District of Columbia has heard the evidence put before him and found it to be “in equipoise.” Indeed, while the record of the case has been sealed at Dixon’s order, medical and other experts have reached differing conclusions after examining Hilary.
Up to that point, the case is much like thousands of others confronting courts and juvenile authorities across the country: difficult, painful, rooted in the most intimate family relationships and the most shadowed regions of human conduct.
But the case of Morgan and Foretich and Hilary and Judge Dixon does not stop here.
Finding the evidence of abuse inconclusive, Dixon ruled that Foretich was entitled to visitation rights. He ordered Morgan to make Hilary available to her father for unsupervised visits.
Then Hilary’s mother took a step that transformed a private agony into a national cause celebre. She defied the court and spirited her daughter into hiding--apparently outside the United States, probably in the care of one or both of Morgan’s divorced parents, who disappeared at the same time as Hilary.
Dixon cited Morgan for civil contempt and ordered her held in jail here until she obeyed.
There Morgan has remained since Aug. 28, 1987, spending nearly 21 months in a cramped District Jail cell in the company of prostitutes and drug dealers. If necessary, she says, she will remain in jail until Hilary is too old to be subject to the court’s jurisdiction--sometime around the year 2000.
With only one known exception--that of an organized crime figure who spent five years in prison for refusing to answer questions--Morgan’s contempt jailing is believed to be the longest in history.
Gift of Safety
“I don’t have any hope of seeing Hilary in the foreseeable future, and it’s very painful,” Morgan said during an interview in jail. “But what balances it is knowing that she has not been molested and she has had two incest-free Christmases. She is the most important thing to me. She knows I love her. She knows I miss her. And she knows I gave her the gift she most wanted: safety.
“She’s safe, she’s happy and she’s healing,” Morgan said.
For women’s rights groups and others--particularly mothers who claim that their children have been abused by non-custodial fathers--Morgan has become a national symbol, a woman sacrificing her own freedom to protect her child. Further, many view her as the innocent victim of a judicial system that has failed in its responsibilities.
For others, Morgan represents an unacceptable case of an arrogant individual who has set herself up as superior to the law. In this view, the heart of the case is not a mother’s understandable impulse to protect her child but a studied and intolerable defiance of the court.
“She wants to make her name in history,” Foretich charged during a recent interview in his suburban Virginia dental office. “As long as she’s in jail, she has an audience. It gives her a grandstand to have her name known. She has become Joan of Arc incarnate. Certainly there will be one or two books or a TV movie out of this.”
Deprived of Parents
Whatever the truth may be about Morgan and Foretich and the judge, their confrontation appears to have produced an impasse in which Hilary’s well-being could become the ultimate casualty.
“The real point is that there is a 6 1/2-year-old child who has never known a normal childhood and is now missing from both her parents,” Foretich said.
Dixon, behaving as jurists often do when confronted with open defiance of court orders, seems to have assigned his highest priority to enforcing the court’s authority over Morgan.
As a result, however, the case of Hilary Morgan Foretich has been frozen, her life hanging in an uncertain balance while Dixon seeks to enforce the authority of his court.
“The coercion has just begun,” he said during one legal proceeding, clearly annoyed by Morgan’s stubbornness. And Dixon, considered by some colleagues a stern disciplinarian, has indicated that his contempt citation will not be rescinded soon.
“As each day passes, the waste of Dr. Morgan’s personal and professional accomplishments will become more and more apparent,” he has said. Each passing day deprives Morgan “of the opportunity to comfort her child after a scrape or a fall,” he said, and “of the celebration of Christmas or a birthday.”
Legislation to put an 18-month limit on imprisonment for civil contempt in child custody cases in the District of Columbia was introduced in the House last month by Rep. Frank R. Wolf (R-Va.). The judiciary subcommittee of the House District of Columbia Committee, headed by Rep. Mervyn M. Dymally (D-Compton), has scheduled a hearing on the bill for May 23.
No companion bill has been introduced in the Senate. Wolf told the House he patterned his bill on laws in California, which puts a 12-month limit on such incarceration, and Wisconsin, where there is a six-month cap.
The judge’s views on the larger situation are largely unknown. Following the almost-universal practice of judges, Dixon refuses to discuss the case before him. “It would be very unfair to the parties involved and a violation of the judicial code of conduct for me to make a public comment about any aspect of this litigation,” he told a reporter.
Some of those close to the case--and no one close to the case is disinterested or unbiased--attribute Dixon’s emphasis on obtaining direct obedience from Morgan in part to bad chemistry between the two. Some women’s groups also consider him generally unsympathetic to their point of view.
Others, including some therapists involved in the case, say men in general often find it difficult to accept the possibility of such heinous conduct from a father.
Also, some note that Dixon might implicitly have to accept some of the responsibility for Hilary’s plight if he concluded now that Morgan might be right. For several months in 1987, just before Morgan hid the child, Dixon ordered visitation and Morgan complied. Hilary spent 10 weekends with Foretich during that period, and Morgan believes the abuse continued.
Whatever the reasons for Dixon’s posture, one result has been that some of the tools potentially available for dealing with Hilary’s plight have not been used. Dixon has never ordered an independent evaluation of the child, for example, and now, with Hilary missing, this would be impossible.
Nor has the possibility of supervised visitation, a device that experts regard as imperfect, been explored in any serious way. Howard Davidson, director of the American Bar Assn.'s child advocacy center, said supervised visits are “an option,” although he has “never considered them terribly realistic.”
“What kind of visit can it be when you have somebody looking over your shoulder, in somebody’s office?” Davidson asked. “You’re not interacting in a normal way with a child. If you want to take the child to the zoo, are you going to have a third person with you? Is it going to be a visit in some child protective service office?”
Took Lie Test
Foretich says his parents or housekeepers were always present when Hilary was visiting. Further, he says, he voluntarily took--and passed--a lie-detector test. He said he resents continued media attention to the case and--regardless of the legal outcome--he has been irrevocably damaged by the charges and the resulting publicity.
“I’ve always abided by the rules,” he said. “I believe in our system of justice. It’s not perfect, but it’s what we have. I’m not going to start being a renegade and doing what she’s doing--screwing up everybody’s lives. She offers no proof that Hilary is even safe.”
“Nobody who talks to us could know which one of us is lying,” Morgan acknowledged in the interview.
Dixon, she said, “just doesn’t believe me. I knew, by the time I came to jail, that his behavior in this case was inexplicable. I came mentally prepared to stay until she was 18. I know he will never protect her. He doesn’t care about anything. He just wants me to do what he says, which I think is wildly immoral. And I’ll be damned if I’m going to do it.”
Morgan became the third of Foretich’s four wives in January, 1982. (A fourth marriage has recently broken up.) The two flew to Haiti, where Foretich obtained a divorce from his second wife, and they were married. Morgan, pregnant at the time, lived with Foretich until August and left him a week before Hilary was born.
She claims that Foretich was “emotionally abusive, and once was physically abusive.” She was awarded custody of their child, and he was given visitation rights.
The following spring, after Hilary had begun spending alternate weekends with her father, Morgan says Foretich’s second wife called her.
“She asked if I thought Hilary was being sexually abused,” Morgan said.
Foretich’s second wife, who asked that her name not be used, said in an interview that her daughter (Foretich’s older daughter) would act “weird” after she returned from visits with Foretich. She said her daughter often came home from visits with Foretich crying and begging her mother not to send her back.
Morgan said she was observing similar behavior in her own daughter. “The visits were obviously bad for Hilary,” she said. “Her personality changed and I didn’t know why. She would either be frightened or very sad or very reluctant to go.”
Morgan said Hilary first described sexual abuse at her father’s hands at about age 2 1/2. Her personality began to “split,” Morgan said, and she began talking of suicide.
Dr. Mary Froning, a specialist in child sexual abuse who treated Hilary for 20 months, confirmed in an interview that the child was “into the beginnings of multiple personality disorder” and often talked of suicide.
“Hilary began to say she wanted to be dead . . . ,” Froning said. “She felt both worthless and hopeless.”
Foretich has charged that his two former wives have joined forces against him, an accusation both women deny. “I don’t even know Dr. Morgan very well, and I didn’t even like her at first,” the second wife said. “But I support her because I know what has happened. It could be me in that jail.”
Foretich has acknowledged that Hilary was sexually abused but says Morgan was the abuser, which Morgan denies. Foretich said Morgan took what he described as obscene photographs of Hilary; Morgan said she was simply trying to document that Hilary was engaging in aberrant behavior in response to Foretich’s abuse. Dr. Charles I. Shubin, a pediatrics professor at the University of Maryland, said the behavior in the photographs was typical of young girls who have been sexually abused.
At one point, Morgan took Hilary to Dr. Joseph Noshpitz, a child psychiatrist at Children’s Hospital. In accordance with District of Columbia law, which requires doctors to report any suspicious child abuse, Noshpitz contacted his hospital’s department of protective services.
A Fairfax County social worker investigated and found Hilary’s case to be “unfounded, with a reason to suspect"--meaning that there was not enough concrete evidence to prove sexual abuse, but there were indications that something had happened.
In a related court action initiated by Morgan in Virginia, Noshpitz testified that Hilary “was clearly a very stressed child” and that her aggressive behavior was “not the typical average play of such children.” But he further said: “The initial assumption I had made, because of the mother’s account, (was) that the child was coming with a story of sex abuse, and so that was primarily what I was looking for at the outset. And that I didn’t find.”
But Froning, who was a staff psychologist at the Chesapeake Institute in Wheaton, Md., which evaluates and treats child sexual abuse, called Hilary’s “one of the clearest cases of child sexual abuse” among the more than 100 with which she has been involved. “I am convinced beyond a reasonable medical certainty that Hilary Foretich was a sexually abused child and that her father was the perpetrator,” she said.
Her findings of abuse were supported by a physical examination conducted by Shubin, who developed the country’s first program to train pediatric health professionals in the diagnosis of child sexual injuries.
Shubin examined Hilary in August, 1986, when she was 4, and reported he found evidence of “penetrating trauma” in Hilary’s vaginal area.
At a later date, he said, he examined Hilary’s half-sister and found similar injuries.
Dr. Catherine DeAngelis, a pediatrics professor at the Johns Hopkins University School of Medicine, testified for Foretich in the Virginia court and expressed doubt about Shubin’s findings.
Hilary’s parents are the objects of equally conflicting testimony, particularly from each other. Foretich described “Elizabeth Morgan,” as he calls her, as “mentally ill, a very ill woman.” Morgan, when speaking of her brief marriage to Foretich, said: “I thought he was nuts.”
The experts also clash in their evaluations.
Dr. Elissa P. Benedek, the new president of the American Psychiatric Assn., interviewed Morgan and testified for Foretich in the Virginia case that Morgan suffered from a “personality disorder.”
But Morgan’s psychiatrist for nearly two years, Dr. Carol Kleinman, who met with Morgan several times a week during that period, said in an interview that Morgan was depressed, “which was a normal reaction to a bad situation,” but that she “is not mentally ill.”
The evaluations of Foretich are equally mixed.
A Virginia psychologist, Dr. William B. Zuckerman, hired by Foretich during his legal battle with his second wife, wrote in a report that Foretich’s test results “may suggest sexual ideation with young girls.”
But Dr. John N. Follansbee, a Virginia psychiatrist who treated Foretich, wrote in a 1986 report submitted to Foretich’s lawyer that “there is nothing to suggest in my observations that Dr. Foretich would resort to child molestation of his daughters as substitution for the loss of his former wives’ affections. It appears that he has sought and found relationships with adult women readily. . . .
“As for the question of visitation, Dr. Foretich gives me no reason to recommend any limitation of visitation. Dr. Foretich is qualified for full custody of either child or both.”
As the legal battle grinds on, Foretich is searching for his daughter. He makes periodic trips outside Washington pursuing leads.
“It’s got to end,” he said. “Where is Hilary? What is going to happen to her now and in the future? Time is running out on Hilary. I knew her to be a very resilient little girl, but her resiliency must be running out. . . .
“She could end up feeling worthless as a human being, feeling responsible for her mother being in jail and her father made a fool of. I don’t have any evidence to know that she’s alive, safe or well. Nothing.”
Morgan, meanwhile, languishes in jail, reading medical journals and writing stories for her daughter. Stephen Sachs, the former Maryland attorney general who has been representing Morgan for free, said she should be tried for criminal contempt, which would entitle her to a jury trial.
“My prediction is that she would never be convicted of criminal intent or parental kidnaping,” he said. “One of the defenses to the charge of parental kidnaping--which carries a punishment of one year--is that you have reasonable fear that harm will come to the child. Just let me at a jury with that.”
Since her divorce from Foretich, Morgan met and has become engaged to U.S. Appeals Judge Paul R. Michel, whose daughter was once one of her patients. They will marry “the week I get out of jail,” she said.
‘Living in a Bathroom’
She wears a prison-issued orange jumpsuit (“because I am unsentenced--you get blue if you’re sentenced”) and shares her cell block with 140 people. “The lights never go off and the noise is constant,” she said. “There are nights when you wake every hour. It’s like living in a bathroom.”
She laughed. “But people can adapt. It’s not like I had a choice--no one said, ‘Do you want a suite or a cell?’ I haven’t seen a tree or a blade of grass or a dog or a bird, or had a pizza, for (21) months. On the other hand, I haven’t had to cook, or clean house or pay bills or dig snow.
“It’s not a great place to be, but I’ve been treated much better than anybody thought. As long as Hilary is safe, the rest I can take.”