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What Becomes of Hilary Foretich? : Morgan case: Falsely charging a parent with a crime of sexual abuse may be as abusive as sexual molestation itself.

<i> Alan M. Dershowitz teaches at Harvard Law School and writes a syndicated column</i>

It seems likely that someone is guilty of child abuse in the case of Hilary Foretich. The 7-year-old from suburban Washington, D.C., recently turned up after a 30-month sojourn that took her from this country to Plymouth, England, and then on to her present “home” in Christchurch, New Zealand.

Hilary’s mother, Dr. Elizabeth Morgan, claims her former husband, Dr. Eric Foretich, sexually abused their daughter since the time she was 2 1/2 years old. Hilary’s father, in categorically denying the charges, claims his former wife is mentally ill. Now there are also allegations that Hilary may have been abused by her maternal grandfather. She has been living in hiding with her maternal grandparents since her mother disobeyed a 1987 court order that authorized Hilary’s father to visit her without supervision.

That order was issued by a District of Columbia judge who, after hearing evidence on both sides, rejected Morgan’s claims that her former husband had sexually abused their daughter. Rather than comply with the order to allow Hilary to visit with her father, Morgan simply defied it and sent her daughter into hiding.

Morgan spent 25 months in jail for refusing to disclose the whereabouts of her missing daughter. She was finally released after Congress passed special legislation limiting incarceration to 12 months in District of Columbia child-custody cases.

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If Morgan is correct in charging her ex-husband with sex abuse, her actions are understandable, if not legally justifiable in light of the court’s order. But if she is lying--if she is falsely charging her former husband with this terrible crime to get even or to obtain some tactical advantage in divorce-related litigation--it is she who might be guilty of child abuse. This would be especially true if she turned her daughter over to a grandfather who was sexually abusing the child.

Whatever the facts are, Morgan and her parents have obviously persuaded Hilary that her father is a frightening and abusive man. She has become terrified of him. It is not difficult for those who have total control over the flow of information to a 7-year-old to turn that child against a father she has not seen for several years.

This tragic reality places the New Zealand judge, who now has the case, in a terrible situation. If he considers only Hilary’s current wishes and short-term best interest, he would probably have to rule in favor of the status quo. If he looks beyond her present fears, he will have to consider the implications of allowing Morgan and her parents to take the law into their own hands. And if he decides to take into account the interests of children, in general, he will surely not want to reward kidnapers who defy lawful court orders that are usually in the best interest of the child.

Everyone understands the horrors of sexual abuse of children. But falsely charging a parent with that crime and using the child as a pawn in a vengeful struggle between former spouses may be as abusive as molestation. Sexual abuse of children is horrible not primarily for the physical damage it causes but for the psychological scars it leaves. The realization by a child that a parent would exploit his or her trust by sexually abusing that child is the primary harm produced by parental sex crimes. That harm is produced just as surely when one parent falsely convinces a child that she has been sexually abused by her other parent.

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It will be difficult for any court to ever learn the full truth of what happened--or did not happen--to Hilary several years ago. Nor can any of us do more than guess, on the basis of the available information, who is telling the truth. The most we can do is believe--more on faith than facts--that one side or the other is probably right. That is why significant weight must be accorded to the previous judicial determination made in 1987 before Hilary was sent into hiding and before she was brainwashed by her mother’s parents.

The child should be returned to the United States and Foretich should be permitted gradually to re-establish a healthy parental relationship with her. Under American law--as well as New Zealand law--no person may be labeled a child molester simply because his former spouse claims he is. The evidence does not support Morgan’s charges against her former husband.

But the evidence does establish that Morgan and her parents have defied the court. If she is rewarded for her unlawful complicity in shuttling her daughter half-way around the world, the message will be clear to all spouses who are dissatisfied with court orders: Take the law into your own hands.


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