A Hard Case of Contempt

By John Elson

To her supporters, including Texas billionaire H. Ross Perot and the National Organization for Women, she is Mother Courage personified. Dr. Elizabeth Morgan, 42, a plastic surgeon, has spent two years in jail -- without benefit of trial -- for civil contempt of court. Her offense: refusing to disclose the whereabouts of her daughter Hilary, now 7, to Washington Judge Herbert B. Dixon Jr., who had ordered unsupervised visits with her ex-husband, oral surgeon Eric Foretich, 46, whom Morgan charges with sexually abusing the child.

To her critics, Morgan is a paranoid liar who has invented the rape charges out of malice against Foretich; her defiance of Dixon's order, they argue, is a sign of obsession, not maternal devotion. To ethicists and legal scholars, the case raises some troubling questions: Should there be time limits on a judge's right to jail a person for civil contempt? Does a parent, where suspicions of sexual abuse exist, have a moral right to defy the courts to protect a child?

Morgan's ordeal should soon be coming to an end. Last week the Senate passed a bill that sets a one-year limit on the length of time an individual in a child-custody case can be jailed for civil contempt in the District of Columbia without facing trial for criminal contempt. Morgan could be freed once the Senate bill is reconciled with somewhat broader legislation previously passed by the House. Meanwhile, on Sept. 20, the full District of Columbia Appeals Court is set to hear oral arguments on a ruling last month by a three-member panel of the bench. The panel decided that Dixon's civil- contempt charge had lost its power to coerce because of the length of time Morgan had spent in jail.

Hard cases, an old saying has it, make bad law, and this one has all the ingredients to bear out that adage: a stubborn judge, two embittered parents and a child torn between them. Morgan met Foretich in 1981, while he was separated from his second wife, former model Sharon Sullivan. After a whirlwind affair, during which Morgan became pregnant, the couple flew to Haiti, where Foretich obtained a quickie divorce. But his marriage to Morgan broke up after only five months, scarcely a week before Hilary was born.

Morgan was granted custody of Hilary, and Foretich obtained liberal visitation rights, but squabbling over the child continued after their divorce. The case was transferred to Dixon's jurisdiction in November 1985; subsequently, Morgan three times charged Foretich with sexually abusing their daughter and demanded that the court curtail his visits. Each time, Dixon ruled that Morgan's proofs were "inconclusive." She and her attorneys complain that he refused to allow testimony that corroborated the charges.

She persisted. Alleging that Hilary was frightened at the prospect of staying with her father, Morgan began to deny him visitation rights. Foretich responded by asking Dixon to hold her in contempt for disobeying the court's orders. Meanwhile, as the complex legal skirmishing continued, Sharon Sullivan accused him of sexually maltreating their daughter Heather, now 9. Foretich successfully took several lie detector tests to deny the charges, and was cleared of them by a Virginia court. In August 1987 Dixon ordered that Foretich be allowed an unsupervised two-week visit with Hilary. Morgan contends, and a psychotherapist she consulted confirms, that the child displayed "suicidal behavior" following previous visits, an allegation that Foretich firmly denies. After a U.S. district court rejected her plea to bar the visit, Morgan placed her daughter in hiding. (Morgan's parents simultaneously disappeared from view.) On Aug. 28, 1987, Dixon ordered Morgan to jail until Hilary was produced.

Judicial experts agree that contempt is one of the courts' most powerful and vital weapons. It is an essential means of enforcing a judge's rulings and coercing testimony from recalcitrant witnesses. Civil contempt is used to compel future behavior, while criminal contempt is used to punish past conduct. Wisconsin has time limits on civil-contempt sentences similar to the one that Congress is seeking to impose on the District of Columbia courts. One advocate of such limits is professor Robert Martineau of the University of Cincinnati College of Law. "If you refuse to comply with the order of the court after a certain period of time," he says, "you've clearly indicated that you are not going to comply. Keeping a person in jail after that simply becomes punishment."

Opponents of the congressional bill include, to the surprise of some, the local chapter of the American Civil Liberties Union, which argues that Morgan has not yet exhausted the appeals process. Beyond that, say critics, the proposed law would hamper judges in trying to compel errant fathers to provide alimony and child-support payments. Others charge that the bills are either too limited, since they apply only to the District of Columbia courts and not to the entire federal judiciary, or that they attempt to solve a nonproblem. Sheila Macmanus, an expert on juridical discipline, notes that of 254 alleged cases of judicial abuse between 1986 and 1988, none involved civil-contempt charges.

Was Morgan justified in defying the judge? "Legally, no," says Martineau. "When there's a conflict between a person's ethical and moral views and what the courts say, the courts must prevail, or we have anarchy." Law professor David Chambers of the University of Michigan demurs. "Parents who put their child first are doing what we expect all parents to do," he says. But Chambers does wonder whether "spending the rest of your child's minority in jail is a better thing for this child than to have yielded to the court order."

Morgan, however, has no doubts as to the rightness of her actions. "For the average middle-class American," she told TIME last week, "living in the D.C. jail is a horror. It's dirty, it's noisy, it's crowded, and you have no privacy. But I chose this because the middle-class American existence is worthless to me if my daughter is being raped. The destruction of my child is not worth any possessions. Just having her safe makes me happy."

With reporting by Steven Holmes/Washington and Andrea Sachs/New York