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Removing Legal Incentives to Lie
Bill Cosby is the latest cultural icon to face
highly publicized and unproven entertainment.tv.yahoo.com/entnews/ap/20050121/110633400003.html
allegations of sexual misconduct. Indeed, police
charges have not even been laid. 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, www.nbc4.tv/education/4112461/detail.html
“H.S. {High School] 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.www.10news.com/entertainment/4087832/detail.html
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
father’s 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 canada.justice.gc.ca/en/ps/pad/reports/2004-FCY-5/
shared custody, their voices are being heard.
Unfortunately, the sensational headlines along
with men’s loud disillusionment are creating
something of a backlash against women who make any
allegations at all. The backlash should be directed
against the legal system itself for including
incentives to lie.
The fact that people lie not just women but
people -- has been acknowledged for many centuries.
It is no co-incidence that www.positiveatheism.org/hist/lewis/lewten91.htm#900
the Ninth Commandment is "Thou shalt not bear false
witness against thy neighbor"; the stricture is
widely interpreted to address sworn testimony in
court.
Human nature has not changed. And a responsible
legal system must promote honesty, for example,
through requiring an oath in criminal court and
enforcing 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 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 whatever
incentives there are to lie. In many cases, this
will not involve sensational trials with murky
“he said/she said” scenarios. Often both
the incentive and the lie are clear-cut.
An example are those claims of paternity that
are proven false but 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. washingtontimes.com/national/20050115-115942-7925r.htm
The Washington Times reported on a
precedent-setting situation in California where a
June court decision and a law that became active on
January 1st 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 wrongly
taken child support and legal fees. His client is
Taron James, founder of
http://hometown.aol.com/vetsvspf/ the organization
Veterans Against Paternity Fraud; the next court
date is January 25th.
This is an ideal area in which the courts can
eliminate an incentive to lie by removing the
reward 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 incentives 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 http://www.thefirstamendment.org/antislappresourcecenter.html
anti-SLAPP law to proven cases of false
accusations. Anti-SLAPP Law was passed to prevent
large corporations from maliciously suing and,
thus, silencing private citizens and grassroots
activists. It prohibits such lawsuits. In some
areas, like www.mensnewsdaily.com/archive/newswire/news2004/1204/120504-marshall.htm
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.
©2007, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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