Removing Legal
Incentives to Lie
Bill Cosby is the latest cultural icon to face highly publicized and
unproven allegations of sexual misconduct.
Indeed, police charges have not even been filed. Whatever may be
proven true of Cosby's conduct, the emerging scandal once again raises
questions about how society should deal with accusations.
What can be done about the growing perception that false accusations
-- especially by women -- are commonplace in matters of divorce, child
support, and in sexual abuse cases that devolve into little more than
competing stories?
The false accusations that grab the spotlight are usually connected
to sexual abuse and celebrities. For example, one headline last week
read, "H.S. Coach Awarded $4.5 Million for False Accusation in Sex Case:
No Charges Were Ever Filed Against Patrick Gillan."
Nevertheless, Gillan's mug shot was displayed on TV and in several
newspapers, along with the accusation. Another headline stated, "Woman
Who Accused Celine Dion's Husband of Rape Gets Prison." The article went
on to explain, "A woman who tried to extort millions of dollars...has
been sentenced to up to five years in prison."
But the false accusations that impact most people are more
commonplace. They often occur in the process of divorce, in battles over
custody and child support. For years, advocates of fathers' rights have
accused the family courts of being "anti-male" and of rubber-stamping
women's claims. And, judging by increasing interest in concepts like
shared custody, their voices are being heard.
Unfortunately, the sensational headlines along with men's
disillusionment are creating something of a backlash against women who
make any allegations at all -- true or false. The backlash should be
directed against the legal system itself for offering incentives to lie.
The fact that people lie -- not just women, but people -- has been
acknowledged for many centuries. It is no coincidence that the Ninth
Commandment is "Thou shalt not bear false witness against thy neighbor";
the scripture is widely interpreted to address sworn testimony in court.
Human nature has not changed, and a responsible legal system must
promote honesty. For example, the system can require an oath in criminal
court and enforce penalties for perjury. To be effective, these
safeguards have to be enforced equally on both sexes and all races.
Today, the enforcement of such safeguards has become all the more
important for women if they wish for their legitimate accusations to be
taken seriously in the future.
The ancient Hebrews employed a rather severe standard. Those who gave
false testimony before a court were liable for whatever punishment would
have been inflicted on the accused, including death.
Fortunately, false accusations can be minimized without draconian
measures. The simplest solution is to remove from the legal system
incentives to lie. In many cases, removing the incentive will eliminate
sensational trials with murky "he said/she said" scenarios.
Often both the incentive and the lie are clear-cut. For example,
consider paternity claims that are proven false. Such claims almost
never result in legal sanctions against a mother who has knowingly lied.
Indeed, she may continue to be rewarded with child support after the
falsehood is revealed. This is because many states require "named"
fathers to pay child support even when DNA tests prove they have no
biological relationship to the children.
The situation may be changing in the near future.
The Washington Times reported on a precedent-setting situation in
California where a June court decision and a law that became active on
Jan. 1 now allow existing child support obligations to be overturned by
men who can prove they are not biological fathers.
One California attorney, Marc Angelucci, is pressing to establish
another precedent. He has filed in civil court for restitution from the
mother and Los Angeles county officials for child support his client was
forced to pay for a child that was not his. His client is Taron James,
founder of the organization Veterans Against Paternity Fraud; the next
court date is Jan. 25.
This is an ideal area for the courts to eliminate an incentive to lie
by removing the reward for doing so and enforcing penalties against
fraud. The media-grabbing cases may spotlight false accusations as a
social problem, but it is in the day-to-day grind of administering law
that the solution will emerge.
Other solutions for removing the incentive to lie exist. To list just
two and all too briefly:
Require criminal charges, like sexual abuse, to be proven beyond a
reasonable doubt in criminal court before they can proceed to the far
looser standards of evidence (and honesty) within civil courts. This
would remove the financial incentive of a civil court award.
Stop applying anti-SLAPP laws to proven cases of false accusations.
Anti-SLAPP laws were passed to prevent large corporations from
maliciously suing and, thus, silencing, private citizens and grassroots
activists. It prohibits such lawsuits.
In some areas, like Massachusetts, the law has been applied to
immunize social workers and mothers who seek custody from the
consequences of misconduct. This turns the intent of anti-SLAPP law
inside out. It is literally being used by those in power against "the
man in the street."
As juicy accusations flood the news, the weary skepticism with which
we view both the accused and the accusers will probably increase.
Cynicism is an easy non-solution. Those who wish to resolve the problem
of false accusations will roll up their sleeves and start pushing back
the legal incentives that reward lies and cheapen justice.
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— Wendy McElroy's Home Page http://www.wendymcelroy.com/
The
Best
Parent
is
BOTH
Parents!
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