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

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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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