MORGAN V. FORETICH EDITORIAL/CRITICAL COMMENT The following Law Review article is presente

                     MORGAN V. FORETICH

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                  EDITORIAL/CRITICAL COMMENT
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The following Law Review article is presented because of its civil
liberties issues regarding contempt incarceration.

However, the highly biased viewpoint of its author clouds the fact
that every competent expert witness, and every court, has found in
factual favor of the falsely-accused father, Dr. Foretich.

Regardless of how you interpret the constitutionality of contempt
incarceration, if you have information which might assist Dr. Foretich
to retrieve his wrongfully hidden daughter Hilary from Dr. Elizabeth
Morgan and the "underground railway" which continues to hide the child, 
please call the Washington, DC Police.

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                For Educational/Critical Use Only:
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      Copyright (c) The American University Law Review 1989
                          SPRING, 1989
                      38 Am. U.L. Rev. 491

ARTICLE: CUSTODIAL PARENTS, CHILD SEXUAL ABUSE, AND THE LEGAL 
SYSTEM: BEYOND CONTEMPT. *
* (c) 1989 Susan Apel

SUSAN B. APEL **

** Assistant Professor, Vermont Law School; J.D., Northeastern 
University School of Law, 1977.  In addition to academic 
credentials, I have practiced law for over ten years; my practice 
was varied but always contained a substantial domestic relations 
component.  I wish to thank my research assistant, Gayle 
Middleton, and my colleagues, Michael Mello, Paul Ferber, and Gil 
Kujovich, for their support and guidance, but mostly for their 
enthusiasm and willingness to read and comment on the various 
drafts of this article.  I am also grateful to Jane Graves for 
her invaluable contributions to the production of this article. 

INTRODUCTION
Dr. Jean Elizabeth Morgan has been incarcerated in the District 
of Columbia Detention Facility since August 28, 1987.  The 
superior court ordered her incarceration after she refused to 
obey an order requiring her to send her five year old daughter, 
Hilary, on a two-week unsupervised period of visitation with the 
child's father, Dr.  Eric Foretich.  Her refusal was based upon 
her belief that Dr. Foretich had repeatedly sexually abused their 
daughter over a period of at least three years.

Dr. Morgan's attempts to protect her daughter through 
use of the legal system persisted for more than two years.  In 
numerous proceedings, n1 she presented evidence that her daughter 
suffered sexual abuse by Dr. Foretich during her visits with him.  
This evidence failed to convince the court that the sexual abuse 
had in fact occurred. n2 The superior court ordered that Hilary 
be delivered to Dr. Foretich for visitation, and Dr. 
Morgan refused to comply with the order. n3 Accordingly, the court 
held Dr. Morgan in civil contempt of its order, and informed her 
that she could purge herself by delivering her daughter to Dr. 
Foretich for unsupervised visitation. n4 Dr.Morgan continued 
her refusal to comply with the visitation order 
due to her belief that unsupervised contact with the father would 
result in further sexual abuse of her child.  Having no further 
legal recourse, she placed the child in hiding in the care of 
persons and in a location that she would not reveal. 
Subsequently, she was incarcerated in a Washington, D.C. jail.

n1.  The procedural history of this case is long and complex.  
Nonetheless, it is important to note in order to understand how 
Morgan and others like her chose the ultimate course of action 
that has resulted in a finding of contempt. The following, drawn 
from Morgan's Petition for Writ of Habeas Corpus by Person in 
Custody of District of Columbia, Morgan v. Plaut, No. 88-492 
(D.D.C. filed Feb. 24, 1988) [hereinafter Petition for Writ of 
Habeas Corpus], and Morgan v. Foretich, 521 A.2d 248 (D.C. 1987), 
is a partial history.  Unfortunately, since the superior court 
chose to seal the record of proceedings, much information is 
beyond the reach of the public.

1983-84 -- Morgan complies with court order granting Foretich 
visitation rights with Hilary.  Morgan v. Foretich, 521 A.2d 248, 
249 (D.C. 1987).

Jan., 1985 -- Morgan, on advice of social worker who suspected 
sexual abuse, seeks temporary restraining order to suspend visits 
pending an evaluation of Hilary.  Court denies motion.  Morgan 
complies with order.  Morgan v. Foretich, 546 A.2d 407, 408 (D.C.
1988), cert. denied, 109 S. Ct. 790 (1989).

Nov., 1985 -- Morgan seeks temporary suspension of visits to 
enable valid evaluation of Hilary.  Foretich moves to oppose 
evaluation.  Court finds evidence of abuse "inconclusive" and 
denies Morgan's motion.  Id.

Feb., 1986 -- On advice of Mary Froning, Hilary's therapist, 
Morgan suspends visits.  Foretich moves for contempt.  Morgan 
cross-motions for suspension of visitation.  Id. Petition for 
Writ of Habeas Corpus.

June, 1986 -- Hearing on above motions.  Court holds that Morgan 
did not prove abuse by "preponderance of evidence," and orders a 
month-long unsupervised visit between Foretich and Hilary.  Morgan 
does not comply.  Id. Morgan v. Foretich, 546 A.2d at 408.

Aug., 1986 -- Hearing to show cause why Morgan should not be held 
in contempt.  Imprisoned for several days and nights; released 
pending appeal with various conditions imposed including the 
posting of $ 200,000 security.  Id. at 409.

Apr., 1987 -- Court expands order and once again allows 
unsupervised weekend visits.  Morgan complies.  Hilary complains 
of sexual abuse during first and at least two other subsequent 
visits.  Foretich moves for a 
change of custody and termination of Morgan's parental rights.  
Morgan cross-moves to suspend visitation or to mandate supervised 
visitation.  Id. Aug., 1987 -- Court orders two-week 
unsupervised visit.  Morgan does not comply.  Seeks modification 
again; court refuses.  Contempt hearing held; Morgan found in 
contempt but given opportunity to purge herself by turning child 
over for visitation.  Morgan hides child and begins indefinite 
prison sentence for civil contempt, and is ordered to pay part of 
Foretich's legal fees.  Id. at 410.

n2.  The transcript of this hearing is currently under seal and 
therefore unavailable to the public.  As previously stated, 
several related hearings were held on the parties' motions and 
cross-motions to modify the order regarding visitation rights and 
custody, as well as the three hearings on contempt charges.  
Relevant portions of these hearings were also placed under seal 
by the court.  The record that is available, however, shows that 
the information relied upon by Dr. Morgan and presented to the 
court by the time of and including the final contempt hearing in 
August, 1987, included but was not limited to the following: the 
child's own, often sexually graphic, statements to her mother, 
grandmother, three psychiatrists and psychologists, a nurse, a 
pediatrician, a social worker, and a police officer; the 
professional opinions of Dr. Charles
Shubin, a pediatrician specializing in the diagnosis of sexual 
abuse in children; the professional opinion of child psychologist 
Mary Froning, a specialist who counselled the child over a period 
of one-and-a-half years and who specifically advised Dr. Morgan 
that unsupervised visitation would result in grave and imminent 
danger to her daughter; the professional opinion of Dr. 
David Corwin, another specialist in child abuse, who spent over 
200 hours evaluating Hilary's case and who joined in the 
conclusion that Hilary had been sexually abused by her father; 
allegations of Dr. Foretich's sexual abuse of another daughter 
from a previous marriage, and testimony and part of a videotape 
depicting Hilary's behavior generally and specifically after a 
visit with her father.  Petition for Writ of Habeas Corpus, supra 
note 1.

Presumably, the testimony of all of the aforementioned experts 
was placed before the court and admitted into evidence.  The 
court excluded transcripts of a hearing regarding the alleged 
sexual abuse of Dr. Foretich's other daughter as not relevant.  In 
a separate action for damages brought by Dr. Morgan in the 
federal court, the United States Court of Appeals for the fourth 
Circuit reversed the lower court's similar exclusion of this 
evidence.  Morgan v. Foretich, 846 F.2d 941, 944 (4th Cir. 1988).

n3.  See supra note 1 (detailing procedural history of case).

                                     
n4.  Morgan v. Foretich, 546 A.2d 407, 410 (D.C. 1988), cert. 
denied, 109 S. Ct. 790 (1989).

At the time of the writing of this article, Dr. Morgan remains in 
prison. Her medical practice has been destroyed; the court has 
attempted to seize her home to pay for fines of $ 5,000 per day 
imposed in connection with earlier contempt proceedings. n5 The 
child, Hilary, remains in hiding and ostensibly has had no contact 
with either of her parents, including the visitation sought by 
Dr. Foretich, for more than a year.  Characteristic of the civil 
contempt order (by which Dr. Morgan was imprisoned), the present 
status may continue indefinitely. n6

n5.  Id. at 412.  The trial court's order requiring forfeiture of 
Morgan's home was overturned on appeal.  The appellate court 
found that she had agreed to post her home as security for her 
appearance in court but not to ensure general compliance with the 
court's order.  Id.

n6.  Dr. Morgan has stated repeatedly that she will never 
acquiesce to the provisions of this court order and that she is 
prepared to stay in prison until Hilary reaches the age of 
majority (presumably at that point the visitation order will 
expire).  Petition for Writ of Habeas Corpus, supra note 1, at 7.

                                   
Elizabeth Morgan's case is not an isolated incident.  Custodial 
parents, most of them mothers, have been faced with the Hobson's 
choice of defying court visitation orders to protect their 
children, thereby risking contempt charges, or heeding the court 
order and placing their children in danger of further sexual 
abuse by the noncustodial parent. n7 Some, like Dr. Morgan, defy 
the court order and   are incarcerated.  Others defy the 
court order and flee with their children, thus avoiding contempt 
charges and the resulting imprisonment. n8

n7.  See H. CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED 
STATES @ 19.4 at 800 (1988) and accompanying note (documenting 
that custody of children continues to be awarded to mothers in 
the majority of cases) Keating, Children in Incestuous 
Relationships: The Forgotten Victims, 34 LOY. L. REV. 111 (1988) 
(relating stories of mothers similar to Dr. Morgan who face 
negative judicial response to allegations of child abuse).  The 
vast majority of sexually abused children, male and female, have 
been abused by men.  One study showed that in roughly half of the 
reported cases, the biological father is the alleged perpetrator 
while only eight percent of the alleged perpetrators were female. 
Thoennes and Pearson, Recommendations from the Sexual Abuse 
Allegations Project,in NATIONAL LEGAL RESOURCE CENTER FOR CHILD 
ADVOCACY AND PROTECTION, AMERICAN BAR ASSOCIATION, SEXUAL ABUSE 
ALLEGATIONS IN CUSTODY AND VISITATION CASES 20(E. Nicholson, ed. 
1988), See also D. FINKELHOR, CHILD SEXUAL ABUSE: NEW
THEORY AND RESEARCH 73 (1984) (finding in survey of Boston 
families that 94% of sexual abuse victims were assaulted by men).

n8.  See infra note 53 and accompanying text; see also Keating, 
supra note 7, at 111-12 (discussing cases in which mothers hid 
their children to escape allegedly abusive fathers).

This Article will examine the problem of the custodial parent who 
refuses to comply with a court order granting visitation rights 
to the noncustodial parent as a result of allegations of sexual 
abuse by the noncustodial parent. Part I of this Article will 
explain briefly why it is difficult, at best, to prove 
allegations of sexual abuse in court.  It is this difficulty, 
and, at times, impossibility, that forces the custodial parent to 
search for alternatives outside of the law.  Parts II and III 
will explore, respectively, civil and criminal contempt -- the 
legal system's responses to the custodial parent who defies the 
court order --and explain why the use of civil or 
criminal contempt in this situation is ineffective and 
counterproductive.  Parts IV and V will examine the use of the 
necessity defense in criminal prosecutions and the standards used 
in assessing culpability for violation of criminal custodial 
interference statutes.  Part VI proposes a new standard, based on 
the necessity defense doctrine, to be applied in contempt 
proceedings against custodial parents such as Morgan.  This 
standard recognizes that a good faith belief 
that violating the court order was necessary to protect the child 
from further harm should be a complete defense to charges of 
contempt.  Finally, Part VII analyzes the practical ramifications 
of adopting such a standard, and concludes that the difficulty 
of proving allegations of child abuse, the inherent limitations 
of the legal system, resource allocation questions, and a focus 
on the best interests of the child lead to a conclusion that the 
courts would do well to honor the good faith belief of the 
custodial parent instead of imprisoning her, even at the expense 
of the rights of the noncustodial parent to maintain contact with 
the child.

I.  THE DIFFICULTY OF PROVING CHILD SEXUAL ABUSE IN COURT

The judicial system is this culture's legal mechanism for 
resolving disputes.  Despite occasional questions about 
whether or not courts are the optimal method of dispute resolution 
for problems of a domestic nature, courts certainly have not 
abandoned their function in the family law sphere. The courts 
still arbitrate disputes over disposition of property, awards of 
alimony and child support, and custody and visitation. n9 Thus, a 
custodial parent who suspects sexual abuse, and therefore wants 
to stop or modify existing visitation rights, could be expected 
to turn to a court for relief.  Upon proof that abuse did in fact 
occur (and presumably, that it might continue), the court would 
then take appropriate steps to modify the original parent and the 
child. n10
n9.  See H. CLARK, supra note 7, @ 12.4, at 443, @ 12.5, at 456 
(describing judicial participation in resolution of family law 
disputes).  n10.  NATIONAL LEGAL RESOURCE CENTER FOR CHILD 
ADVOCACY AND PROTECTION, AMERICAN BAR ASSOCIATION, SEXUAL ABUSE 
ALLEGATIONS IN CUSTODY AND VISITATION CASES 6 (E.  Nicholson, ed. 
1988) [hereinafter SEXUAL ABUSE] (explaining court involvement in 
abuse cases between divorced parents).
The obvious question, then, is why Elizabeth Morgan, after 
repeated attempts to get the court to intervene, failed in her 
efforts to prove that her ex-husband had sexually abused their 
daughter.  Her inability to prove that her child had been abused, 
and that her ex-husband was the abuser, may be seen as indicative 
of one of three things.  First, although the evidence was 
sufficient,the judge did not act properly.  In this case, one 
could simply say that an occasional incompetent or prejudiced 
judge is a regrettable "glitch" in the system and, fortunately, 
one contemplated and therefore provided for; an appeal of the 
judge's ruling would "correct" the situation. n11 Second, the 
abuse complained of simply did not occur.  In this instance, 
justice would have been served by the present result.  

n11.  Appellate courts, however, rarely reverse custody decisions 
because they place great weight on the trial court opinions, 
reversing only when the trial court abuses its broad discretion.  
Nicholson, Child Sexual Abuse Allegations in Family Court 
Proceedings: A Survey of Legal Issues, in SEXUAL ABUSE, supra 
note 10, at 258; see also Lehman v. Billman, 178 Mont. 367, 373, 
584 P.2d 662, 665 (1978) (deferring to district court on issue of 
custody and child's best interest).

However, a third possibility exists -- that even in cases in 
which abuse has in fact occurred, if is often, and perhaps almost 
always, impossible to prove within the evidentiary rules and the 
adversarial nature of the current legal system. n12 Lack of 
corroborating witnesses, the age of the victim, the 
real and perceived problems in the competency and credibility of 
child witnesses, the clash of the rights of the victim with the 
sixth amendment confrontation rights of the defendant, and the 
responses and prejudices of the culture as a whole, carried into 
the courtroom by judge and jury, combine to make child abuse "one 
of the most difficult crimes to detect and prosecute . . .." n13

n12.  See SEXUAL ABUSE, supra note 10, at 12-14, 17 (presenting 
reasons for judicial skepticism in abuse cases and maintaining 
that "all but the most flagrant cases of sexual abuse are 
difficult to validate").  It is not my intent to make reformation 
of the legal system the focus of this Article; it is important, 
however, to acknowledge the reality that causes parents to 
abandon the system that is supposed to resolve family problems.  
Nor, as this section of this Article will indicate, do I propose 
that the legal system is solely responsible for the problems in 
proving a case of child abuse; other factors, social and 
psychological, play a role as well.
n13.  Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

The most obvious problem of proof is that sexual abuse of 
children, like rape, is a crime that is done privately, often in 
the home where there are few, if any, witnesses, The victim is 
often the only witness. n14 Adult women have suffered through 
decades of being unable to prove that they had been raped because 
no one had seen it happen; n15 until recently, the law itself 
often demanded corroborating evidence in order to secure a 
conviction. n16 In both cases, the problem has been the same, 
albeit for different reasons; women are often suspected of 
"consent," while children are suspected of "fabricating." n17
  
n14.  See Morgan v. Foretich, 846 F.2d 941, 945 (4th Cir. 1988) 
(explaining need for admitting hearsay testimony in child abuse 
cases).

n15.  See D. RUSSELL, SEXUAL EXPLOITATION 100 (1984) (reporting 
results of study of rape victims in which only 20% of rapes had 
been reported).

n16.  Id. at 138 (characterizing American society as rape-
supportive and citing reasons for failure of effective rape 
adjudication).

n17.  Id. (discussing notion that women consent to rape).

Children are often accused of lying about sexual abuse, whether 
for reasons of their own or because they are suspected of being 
brainwashed by adults. n18 Our culture is one that simply does 
not find children credible. n19 The notion that children cannot 
be believed is entrenched in our legal system as well as the 
larger culture.  Children under a certain age may be deemed by 
law to be incompetent as witnesses; in other instances, an 
elaborate voir dire on the issue of the child's understanding of 
the truth may be required to allow the child to testify at all. 
n20 Most experts, however, agree that the percentage 
of cases in which children lie about sexual abuse is very low, in 
some studies as low as two to four percent. n21

n18.  J. CREWDSON, BY SILENCE BETRAYED: SEXUAL ABUSE OF CHILDREN 
IN AMERICA 169-70 (1988) (discussing reasons why children tell 
lies and improbability of children lying in sexual abuse cases).  
See also Keating, supra note 7, at 115   (noting misconception of 
children's untruthfulness).

n19.  Bulkley, Evidentiary and Procedural Trends in State 
Legislature and Other Emerging Legal Issues in Child Sexual Abuse 
Cases, 89 DICK. L. REV.  645, 665 (1985) (showing that children 
are no more likely to prevaricate than adults).

n20.  For a discussion of competency laws and their effect upon 
the child's ability to testify, see Note, The Competency 
Requirement for the Child Victim of Sexual Abuse: Must We Abandon 
It?, 40 U. MIAMI L. REV. 245, 257 (1985).  No state bars the 
victim's testimony, but each differs as to what is required to 
establish competency of a minor to testify.  On the other hand, 
some state legislatures have enacted statutes in which competency 
is assumed for purposes of child abuse cases.  Id. at 253.  See 
also ALA. CODE @ 12-11-165 (1975) (permitting any person 
competent to understand oath to act as witness); CAL. EVID. CODE 
@ 701 (West 1966) (understanding of truth and ability to be 
understood by jury determinative of competency); MASS. GEN. LAWS 
ANN. ch. 23 @ 20 (West Supp. 1985) (deeming as competent every 
person who can understand facts of testimony).
 
n21.  J. CREWDSON, supra note 18, at 169.  In Sink, Studies of 
True and False Allegations: A Critical Review, in SEXUAL ABUSE, 
supra note 10, at 40-41, the author reports the following 
studies: Jones (1986): of 576 referrals of child sexual abuse 
made to Department of Social Services in Denver, Colorado in 
1983, 6% fictitious reporting by adults, 1% fictitious reporting 
by children; Horowitz, Salt, Gomes-Schwartz & Sauzier (1984): of 
181 cases of child sexual abuse reported to Family Crisis Program 
in urban Boston, of 92 reported by children, 85 were 
substantiated, 7 were false, and of 76 reported by others, 9 were 
false; Goodwin, Sahd, & Rada (1979): of 46 such reported cases, 1 
false allegation by child, 2 false allegations by parents.

The issue of credibility, as problematic as it may be, presumes 
that the child is capable of communicating at all.  Many child 
abuse victims are pre-verbal; those who can talk may not have the 
vocabulary to adequately express what has happened to them.  About 
half of sexual abuse victims may be under the age of five years; 
one writer states, "[m]any abusers have figured out what 
prosecutors already know, that it's open season on very young 
children." n22 Thus for half of the victims, the issue of 
credibility is not even reached; the child is simply unable to 
put words together that will adequately describe the crime. n23
 
n22.  J. CREWDSON, supra note 18, at 162.  Research concerning 
the ages of victims of sexual abuse is inconclusive.  See 
Bulkley, supra note 19, at 647. While studies of the National 
Center on Child Abuse and Neglect place the age higher than does 
Crewdson, the statistics appear to show a shift downward.  In 
1981, the Center reported the average age of the victim to be 
between 11 and 14 years, followed by another study showing the 
majority of victims to be under the age of 12.  The Center cited 
one program which showed that one-third of all victims were under 
the age of six years at the time of the abuse.  Id.

n23.  See Morgan v. Foretich, 846 F.2d 941, 943 (4th Cir. 1988) 
(noting that two-thirds of sexual abuse cases go unreported and 
those that do reach trial are difficult to prosecute) (citing 
Note, The Testimony of Child Victims in Sex Abuse Prosecutions: 
Two Legislative Innovations, 98 HARV. L. REV. 806, 807 n.7 
(1985)).

Without the child's testimony, the court could look to expert 
witnesses, which is most often done in the form of medical 
evidence.  Such evidence, however, is difficult to come by.  
Children can be repeatedly abused and yet have no physical 
symptoms. n24 Assuming physical symptoms or the presence of a 
sexually-transmitted disease, such evidence may prove half a 
case: that a child was abused, but not by whom.  In addition, 
many physicians are not adequately trained to detect symptoms of 
sexual abuse of children; the same is true of 
mental health professionals. n25 Training of these professionals, 
when it exists, quite naturally focuses upon the ability of the 
professional to detect and treat medical and psychological 
disorders.  It does not prepare medical and mental 
health workers to elicit or preserve evidence that is necessarily 
useful in a court proceeding. n26 For example, the interview of 
the child may reveal that abuse has occurred, but the manner in 
which the interview is conducted (e.g., leading questions) may 
tarnish the evidence of the child's statement. n27

n24.  See J. CREWDSON supra note 18, at 164 (discussing 
difficulties of proving child abuse through physical 
examination).

n25.  See id. at 161-62.

n26.  One writer neatly captures this difference in approach by 
referring to "two formal ways that a determination about abuse of 
a child . . . is made: legal fact-finding and forming a 
professional opinion." Berliner, Deciding Whether A Child Has 
Been Sexually Abused, in SEXUAL ABUSE, supra note 10, at 49. n27.  
See Goodman & Helgeson, Child Sexual Assault: Children's Memory 
and the Law, in AMERICAN BAR ASSOCIATION, PAPERS FROM A NATIONAL 
POLICY CONFERENCE ON LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES: 
A REPORT OF THE AMERICAN BAR ASSOCIATION CHILD SEXUAL ABUSE 
LAW REFORM PROJECT 41, 46 (1985) 
[hereinafter LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES] (warning 
against placing children in situations in which they are 
susceptible to suggestion); Goodman, The Child Witness' 
Conclusions and Future Directions for Research and Legal 
Practice, in LEGAL REFORMS IN CHILD SEXUAL ABUSE CASES 61, 74 
(debating value of expert testimony in abuse cases).

Assuming that a child is both physically and legally able to 
testify, the nature of a child's ability to perceive and to 
remember, combined with the adversarial nature of the court 
proceedings, often makes the child a poor witness:

[T]he [defense] lawyer has a single, overriding goal -- to show 
that the child, for reasons of his own or at the behest of some 
adult, has made up the allegations.  If such a contest seems like 
a gross mismatch, it usually is -- an intelligent, well-educated 
trial lawyer with years of experience in questioning hostile 
witnesses pitted against a child who is easily confused about 
time, place, and the sequence of events, who tells different 
parts of the same story at different times, and who links things 
in his mind that may not be connected. "Didn't you tell the 
police this happened in the bedroom?" the defense attorney may 
ask.  "Now you're saying it happened in the bathroom." Perhaps 
the door between the bedroom and bathroom was open; perhaps the 
abuser took the child 
from the bedroom into the bathroom, but to the adults on the 
jury, who have learned to equate consistency with truthfulness, 
it begins to sound as though he is making the story up. n28

n28.  J. CREWDSON, supra note 18, at 166. = While some 
accommodations have been made to ease a child's testifying in 
child abuse cases, such as testifying in camera or through use of 
a video monitor or some expansion of the hearsay exceptions, n29   
there are constitutional standards that will allow such 
tinkering with the system to go only so far. n30 Probably no 
amount of adjustment would prevent a defense attorney from 
engaging in the kind of cross-examination described above, with 
its concomitant effect on a jury.

n29.  Twenty-two states permit adult witnesses to testify to 
statements made to them by child victims.  See Note, Pennsylvania 
v. Ritchie: The Supreme Court Examines Confrontation and Due 
Process in Child Abuse Cases, 34 LOY. L. REV. 181, 186 n.41 
(1988); see also Bulkley, supra note 19, at 657-64 (discussing 
adaptations by legal system to problem of proving child abuse in 
court).  A judge may also separate abuse allegations from other 
connected family law proceedings and have the case tried in 
juvenile court.  Edwards, The Relationship of Family and Juvenile 
Courts in Child Abuse Cases, 27 SANTA CLARA L. REV.  201, 202 (1987).
Other means of determining 
outcomes of sexual offense cases include the use of anatomically 
correct dolls, the hiring of special advocates to prepare 
children, and having specially equipped waiting or =interviewing 
rooms.  Nicholson, Child Sexual Abuse Allegations in Family Court 
Proceedings: A Survey of Legal Issues, in SEXUAL ABUSE, supra 
note 10, at 267.

n30.  In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), for 
example, the Court discussed whether restrictions on access to 
social service agency files violated a defendant's sixth amendment 
right to confront adverse witnesses.  Although the Court did not 
take an expansive view of the right of confrontation and openly 
acknowledged the difficulty of proving a claim of child abuse, 
the plethora of separate opinions, including a strong dissent, 
indicated that the issue was far from settled.  See id. at 62 
(Brennan, J., dissenting).  Indeed, one year later, in Coy v. 
Iowa, 108 S. Ct. 2798, 2803 (1988), the Court held that a 
defendant's sixth amendment right to confrontation was violated 
when the trial court permitted the child victims to testify in 
court behind a screen.  Use of such a device was unconstitutional 
because it deprived a defendant of face-to-face confrontation.  
See Mlyniec & Dally, See No Evil?  Can Insulation of Child Sexual 
Abuse Victims Be Accomplished Without Endangering the Defendant's 
Constitutional Rights?, 40 U. MIAMI L. REV. 115, 116 (1985) 
(analyzing attempts to shield child abuse victims and effects on 
defendants' constitutional rights).
 
Culturally, child sexual abuse is such a taboo that most of the 
participants in the legal (and perhaps other) system(s) want to 
turn away from it.  No one wants to believe it is true.  Despite 
the fact that an estimated twenty-two percent of Americans have 
been sexually abused as children, n31 many people, including 
juries and judges, find it difficult to believe that it happens. 
Moreover, most parents who have abused their children do not fit 
any particular profile; therefore, the accused abuser is likely 
to look and act just like any of the jurors or the judge. n32 To 
the extent that fact-finders may identify with the alleged 
abuser, then, it is even more difficult to convince them that 
a seemingly "ordinary" parent is capable of, much less guilty of, 
sexually abusing a child.
n31.  J. CREWDSON, supra note 18, at 24 (citing 1985 Los Angeles 
Times poll).Studies have shown that various percentages of the 
population have been sexually abused as children, depending in 
part upon the definition of sexual abuse. Gender also plays a 
role; percentages are higher for women.  Two major studies, for 
example, showed that 15% of women and 6% of men were sexually 
abused as children (Finkelhor), the other showed that 38% of 
women had been so abused (Russell).  D. FINKELHOR, CHILD SEXUAL 
ABUSE: NEW THEORY AND RESEARCH (1984) (studying 521 Boston 
patients); D. RUSSELL, supra note 15, at 183 (measuring 
prevalence of incestuous and extra familial sexual abuse).
  
n32.  Berliner, supra note 26, at 62.

Whether for reasons of sexism, or simply because negative 
feelings against a former marital partner are more within the 
first-hand experience of the fact-finder than sexual abuse of 
children, the myth of the vindictive female spouse remains.  
Accusations of sexual abuse of the child may be viewed 
suspiciously as attempts by the custodial parent to punish the 
former partner or to obtain leverage in some other 
aspect of the dissolution of the relationship. n33 Although the 
research in this area shows that the incidence of lying by 
custodial parents about this issue is very low, n34 the result of 
this research seem to have done little to dispel the myth.  Even 
worse, the myth can be so strong in some cases that mothers who 
accuse their ex-spouses of child abuse find their fitness as 
parents called into question specifically because they have made 
such accusations. n35

n33.  See Keating, supra note 7, at 113 (maintaining that 
judiciary becomes prejudiced against parent who alleges abuse).

n34.  Sink, supra note 21, at 40; Theonnes and Pearson, supra 
note 7, at 17, 21.

                                     
n35.  Theonnes and Pearson, supra note 7, at 13.  See Keating, 
supra note 7, at 114 (describing recent trend of custody 
modification following allegations of sexual abuse).

Other societal reasons also make abuse cases often impossible to 
prove. Despite the recent concentration of attempts to address 
the problem, such as telephone hot line numbers and public 
education campaigns, a desperate shortage of resources to 
investigate adequately complaints of child abuse still remains. 
n36 In a famous study oft-cited by persons who believe the furor 
over child abuse is simply a witch hunt, sixty-five percent of all 
reported cases of child abuse were determined to be "unfounded." 
n37 "Unfounded" does not, however, mean"untrue." Rather, there 
are not enough trained professionals (i.e. social workers, 
psychologists, or physicians) to investigate the claims 
adequately. The rash of recent legislation adds to the burden by 
not only requiring reporting and investigation of suspected child 
abuse, but often setting very short deadlines within which an 
"answer" must be given by the responsible agency. n38 While   
undoubtedly the intent of the legislation is to ensure 
promptness in dealing with the problem, given the scarcity of 
resources, time pressures decrease the ability of the child 
protection system to operate effectively.

n36.  The term "explosion" does not begin to describe the 
increase in numbers of children who are reported to have been 
sexually abused.  The American Humane Association estimated that 
in 1984, 110,878 children were reported as victims of=sexual 
molestation, a 54% increase from the previous year.  American 
Humane Association, "Reports of Child Maltreatment Increase 
Again," News Release, (Nov.8, 1985).  In Morgan v. Foretich, 846 
F.2d 941, 943 (4th Cir. 1988), the Fourth Circuit cites a study 
by Finkelhor showing an 852% increase in reported cases from 1976 
to 1983, and notes that an estimated two-thirds of child sexual 
abuse cases are never reported.  Finally, a most recent report 
from the National Coalition for Children's Justice shows that in 
1975, the number of reported cases was 1,741, and by 1986, the 
number had increased to 216,216, almost a quarter of a million 
cases per year.

n37.  Besharov, "Doing Something" About Child Abuse: The Need to 
Narrow the Grounds for State Intervention, 8 HARV. J.L. & PUB. 
POL'Y 539, 556 (1985) (citing Besharov, The Legal Aspects of 
Reporting Known and Suspected Child Abuse and Neglect, 23 VILL. L. 
REV. 458 (1977-78)).  Besharov interpreted data from the U.S. 
NATIONAL CENTER ON CHILD ABUSE AND NEGLECT, NATIONAL ANALYSIS OF 
CHILD NEGLECT AND ABUSE AND REPORTING (1978).  It is important to 
note, however, that this study involved all forms of child abuse 
and neglect, not just sexual abuse. Moreover, Besharov himself, 
while urging a more restrained approach to the problem of child 
abuse, does not equate the high percentage of "unfounded"
reports to any sinister cause.  Instead, he states, "Few of these 
'unfounded' reports are made maliciously; rather, most involve 
confusion over what types of situations should be reported.  
Approximately half involve situations of poor child care . . . .  
Many reports are made by professionals playing it safe." Id. at 
556.

n38.  See, e.g., MD. FAM. LAW CODE ANN. @ 5-706 (1984) (mandating 
completed investigation of incident of abuse within ten days); 
IND. CODE ANN. @ 31-6-11-5 (Burns 1987) (requiring written report 
within forty-eight hours of reported abuse).

Finally, given all of the problems of proving child abuse, it is 
not difficult to see why prosecutors might use their discretion 
not to prosecute these cases.  Prosecutors correctly view a pre-
verbal child, or any child who is the sole witness to an incident, 
coupled with a lack of corroborating physical evidence and lack 
of access to or resources for appropriate expert testimony, as a 
case with almost no chance of conviction. n39 The training and 
skill of prosecutors cannot make up for the lack of admissible 
and persuasive evidence. The task is no easier for the custodial 
parent's attorney in the domestic relations arena.

n39.  See J. CREWDSON, supra note 18, at 176-77.  Of course, the 
degree of prosecutorial reluctance varies from state to state, 
county to county, and individual to individual.  Some factors 
that may cause prosecutors to back away from prosecuting these 
cases are individual personality and prejudices, discouragement 
with the legal system in child abuse cases, public pressure, 
lack of specialized training, and generally high case loads.  Id.

Thus, the custodial parent who views the court system as 
providing no solution to her problem is neither ignorant nor 
anarchic.  The perception that the legal system is "against" the 
custodial parent is probably accurate; the belief that the 
custodial parent must protect the child because the court system 
will not is a realistic one.  The parent who finds herself having 
to choose between protecting the child and following a court 
order is between the proverbial rock and hard place.  If the 
custodial parent chooses, as Morgan and others have done, to 
protect the child by violating the court order granting visitation 
rights to the suspected abuser, the court may hold the custodial 
parent in civil or criminal contempt.

II.  CIVIL CONTEMPT

It is well-established that courts have the power to enforce 
their orders through contempt proceedings. n40 When the purpose 
is to punish an individual                                       
for disobeying an order, the court invokes the powers of criminal 
contempt. n41 Historically, criminal contempt was the original 
form of contempt, designed to vindicate the court's own    
authority. n42 Courts soon realized, however, that such 
punishment was not always the desired purpose; a device was 
necessary to enable courts to enforce orders that would protect 
the rights of other parties.  Civil contempt is the vehicle 
through which one party may enforce rights granted to her by the 
court. n43

n40.  See 28 U.S.C. @ 1826 (1983) (creating federal right of 
courts to use contempt proceedings); FED. R. CRIM. P. 42 
(enabling use of contempt in criminal proceedings); Note, Civil 
and Criminal Contempt in Federal Courts, 47 YALE L.J. 83, 85 
(1947) (defining contempt and its punishment).

n41.  See 3 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE @ 704 
(1982) (asserting that criminal contempt punishes contemner and 
vindicates court's authority).

n42.  For a brief historical account of the development of civil 
and criminal contempt, see Note, supra note 40; see also R. 
GOLDFARB, THE CONTEMPT POWER 1-42(1971) (discussing origin of 
contempt power in British law).

n43.  In Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 441 
(1911), for example, the Court stated that "for civil contempt, 
the punishment is 
remedial, and for the benefit of the complainant.  But if it is 
for criminal contempt the sentence is punitive, to vindicate the 
authority of the court." See also R. GOLDFARB, supra note 42, at 
42-90 (relating history of contempt power and trends of usage 
and motivation).

The purpose of civil contempt is coercive.  It is used to force a 
recalcitrant party to obey a court order.  Thus, the contemnor is 
incarcerated until she agrees to abide by the court's broken 
order. n44 Civil contempt is best described by the familiar, if 
by now banal, expression that the contemnor carries the "keys to 
his prison." n45 Persons found in civil contempt may purge 
themselves of the contempt charge and resulting imprisonment 
simply by doing that which they were originally ordered to do. 
n46 Because coercion is the purpose for civil contempt, once the 
contemnor is in fact coerced, further imprisonment would serve no 
useful end.  If and when the contemnor decides to purge herself, 
she simply accedes to the terms of the court order and thereby 
secures her release from jail. n47 The beauty of this remedy, 
then, is the surgical precision with which it addresses the 
problem of noncompliance with a court order.  It requires simple 
obedience and places the responsibility for incarceration 
directly upon the recalcitrant party.

n44.  See C. WRIGHT, supra note 41 at @ 2960.

n45.  The history of this phrase is amusing.  While its source is 
not entirely clear, the suggestion is that it was borrowed from a 
Pennsylvania case, Passmore Williamson's Case, 26 Pa.  9, 24 
(1855), in which the court used the metaphor to describe an 
incarceration that it labeled as criminal. Confusion between the 
two is still not uncommon.  See R. GOLDFARB, supra note 42, at 
48. Following a discussion of the attempts of two distinguished 
commentators, Stewart Rapalje and James Oswald, to define the 
differences between civil and criminal contempt, Goldfarb 
concludes that "the greatest percentage of cases of contempt 
could fall into either category, depending not upon the 
application of the Rapalje or Oswald formulas, but upon the 
discretion of the particular decision-maker." Id.  See also 
Shillitani v. United States, 384 U.S. 364, 367 (1966) (using 
phrase to illustrate purpose of civil contempt).

n46.  See generally Note, The Coercive Function of Civil 
Contempt, 33 U. CHI.L. REV. 120 (1965).

n47.  See C. WRIGHT, supra note 41, at @ 704 (describing 
operation of civil contempt).

Civil contempt has been used in a variety of contexts.  Among its 
first uses in the federal court system were cases involving labor 
disputes. n48 Federal courts have used civil contempt most 
notably to force witnesses to                           
testify in grand jury proceedings. n49 It should come as no 
surprise that the state courts are inundated with cases in the 
domestic relations are. Noncompliance with court orders 
concerning domestic issues such as custody, child support, and 
alimony is rampant. n50

n48.  See Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 
452 (1911) (holding defendants guilty of contempt for refusing to 
stop boycott); United States v. United Mine Workers, 330 U.S. 
258, 301 (1947) (upholding contempt order imposed on striking 
mineworkers).

n49.  In re Crededio, 759 F.2d 589, 595 (7th Cir. 1985) (refusing 
to release immunized witness after questioning effectiveness of 
sanction); Sanchez v. United States, 725 F.2d 29, 30 (2d Cir. 
1984) (reviewing coercive effect of contempt sanction); Simkin v. 
United States, 715 F.2d 34, 39 (2d Cir. 1983) (remanding for 
determination as to coercive effect); In re Grand Jury 
Investigation, 600 F.2d 420, 428 (3rd Cir. 1979) (affirming 
refusal to release contemnor who refused to testify in organized 
crime case).

n50.  Such cases are obviously too numerous to cite, although any 
conclusions from the number of cited cases would be grossly under 
inclusive.  Many of these cases, often deemed too fact-specific 
for use as precedent, are unreported.  As to the rate of 
noncompliance itself, however, statistics are available.  On 
the issue of child support alone, there is a 53% default rate.  
L. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND 
ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 262 n.1 
(1985) (citing U.S. Bureau of the Census, "Child=Support and 
Alimony: 1981").  Weitzman's own study showed that within six 
months of the divorce decree, one out of six men owed an average 
of $ 1000 in unpaid alimony.  Id. at 161.  Examples of the use of 
civil contempt in reported domestic cases are voluminous.  SeE, 
e.g., Mallory v. Mallory, 207 Conn. 48, 57,539 A.2d 995, 999 
(1988) (upholding trial court's finding that father was in 
contempt for failure to pay child support); People v. Doherty, 
165 Ill. App. 3d 630, 639-40, 518 N.E. 2d, 1303, 1309 (1988) 
(holding that father could be found in both civil and criminal 
contempt for abduction of children from custodial mother); 
Alexander v. Alexander, 22 Ark. App. 273, 276-77, 742 S.W. 2d 
115, 118 (1987) (finding civil contempt and imprisonment 
appropriate for father who failed to make child support payment 
due to willful refusal); Breeding v. Breeding, 515 So. 2d 374, 
375 (Fla. App. 1987) (overturning on procedural grounds contempt 
finding where mother refused to appear in court to disclose 
children's location); Young v. Young, 514 N.Y.S. 2d 785, 786, 129 
A.D. 2d 794, 795 (1987) (upholding trial court's finding of civil 
contempt for impeding mother's visitation, but also holding that 
imprisonment for six months was excessive, although definite 
sentence approved); King v. Department of Social Serv., 47 Wash. 
App. 816, 827, 738 P.2d. 289, 294 (1987) (overturning contempt by 
father who refused to divulge location of children to social 
service agency).

Civil contempt, then, designed as it is to change behavior rather 
than punish (and one might therefore say a remedy that focuses 
specifically on solving the problem) is available and is often 
used in situations akin to that presented in the Morgan case. 
n51 Unfortunately, as also demonstrated in Morgan, its power 
is much like the use of threat in negotiation. n52 For so long as 
the spectre of incarceration hangs over the head of a 
recalcitrant parent, the court retains its power to persuade her 
and to coerce the desired behavior.  Once the contemnor has 
called the court's bluff, however, the court is required to make 
good on the threat and imprison the custodial parent.  Some 
parents, like Morgan, have chosen jail over placing their 
children at risk. n53 It is at this point that the use of civil 
contempt initiates a grave scenario and one that 
appears to serve the interests of none of the participants.  
Civil contempt does not serve the interests of the parties, the 
court, or the community.

n51.  See infra note 53 (discussing parental imprisonment through 
use of contempt orders).

n52.  "[I]t is important to recognize that a threat is most 
effective when it produces the desired result without having to be 
carried out . . . once it has 
been carried out it loses its value as a deterrent or incentive . 
. . ." G. BELLOW & B. MOULTON, THE LAWYERING PROCESS 559-61 
(1978) (emphasis in original). n53.  There are many reported 
cases in which parents are imprisoned for contempt for failure 
to afford visitation or for refusal to disclose the whereabouts 
of their children.  See, e.g., Young v. Young, 129 A.D.2d 794, 
795, 514 N.Y.S.2d 785, 786 (1987) (approving prison sentence for 
contempt, but finding that six-month sentence was too long); 
Marallo v. Marallo, 128 A.D.2d 710, 710, 513 N.Y.S.2d 204, 204 
(1987) (ordering mother jailed for contempt of order granting 
visitation rights to grandparents); King v. Department of Social 
Services, 47 Wash. App. 816, 827, 738 P.2d 289, 294 (1987) 
(overturning contempt order for father who refused to divulge 
location of children to social service agency); Casbergue v. 
Casbergue, 335 N.W.2d 16, 19 (Mich. Ct. App. 1983)(suspending 
criminal sentence upon mother's compliance with visitation 
order);Schotz v. Oliver, 361 So. 2d 605, 606 (Ala. Civ. App. 
1978) (upholding contempt order against mother who failed to 
produce child for visits with father); People ex. rel. Feldman v. 
Warden, 46 A.D.2d 256, 257-58, 362 N.Y.S.2d 171, 173-74 (1974) 
(affirming imprisonment of "foster" mother for failure to 
disclose location of child to court in custody proceeding with 
biological mother).

Reported cases do not, however, provide accurate information on 
the number of parents in Morgan's situation for two reasons.  
First, the reported cases, 
remarkably, often do not state facts sufficient to understand the 
reasons for the custodial parent's refusal.  Second, given the 
standard of review, contempt cases are rarely appealed.  The 
recent popular media provide occasional glimpses of parents in 
Morgan's situation: Morgan herself, Karen Newsom, Virginia 
LaLonde, Valerie Marcus, Dorrie Singley, and April Curtiss.  See 
Mothers on the Run, U.S.  NEWS AND WORLD REPORT, June 13, 1988, 
at 22 (reporting on April Curtiss, who has run from authorities to 
prevent former husband from receiving visitation rights); 
Wilkinson, Witchhunting in Hattiesburg, AM. LAW., May 1988, at 
104 (summarizing cases of Karen Newsom and Dorrie Singley); What 
Makes Mommy Run?, Boston Globe, Apr. 24, 1988, (Magazine), at 14 
(describing plight of mothers who have hidden children from 
allegedly abusive fathers including Valerie Marcus and Virginia 
LaLonde).

The detriment of this approach to the custodial parent is 
obvious: she is required to spend her time in prison, a situation 
from which any number of negative consequences may flow.  The 
most ominous aspect of her incarceration is that her sentence is 
an indefinite one. n54 The actual number of years served by the 
parent will of course differ depending upon the age of the child 
and the statutory age of majority in each state, but the 
potential sentence could run for several years, much longer than 
the six-month maximum sentence for criminal contempt that could 
have been imposed in the absence of a jury trial. n55 Moreover, 
while the procedural safeguards that accompany prosecution for 
criminal contempt will be dealt with subsequently, it 
is crucial to note that other than notice and an opportunity to 
be heard, none of the due process requirements attendant to a 
criminal proceeding must be observed in this, a civil matter. 
n56 Thus, the combination of an indefinite, potentially lengthy, 
sentence coupled with a lack of procedural safeguards, implicates 
serious constitutional concerns. n57

n54.  The sentence is "indefinite" because it is not possible to 
know exactly when the sentence will end.  One could argue that the 
sentence technically is a "definite" one since once the child 
reaches the age of majority, a custody order would become 
obsolete.  The same argument could, however, be made with respect 
to the federal civil contempt statute, 28 U.S.C. @ 1826(a) 
(1982), since it provides for release of the recalcitrant witness 
at the end of the term of the grand jury or 18 months, whichever 
comes first.  I am unaware of any comment questioning the civil 
nature of contempt under this statute for that reason. Any civil 
contempt sentence is in some sense definite if one can foresee a 
future event that would make compliance impossible, as in this 
case and in grand jury proceedings.

n55.  See Duncan v. Louisiana, 391 U.S. 145, 162 (1968) (holding 
that defendant is entitled to jury trial for crime punishable by 
two-year imprisonment); Bloom v. Illinois, 391 U.S. 194, 211 
(1968) (mandating jury 
trial for criminal contempt punished by two-year prison term); 
Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966) (imposing 
maximum six month sentence for contempt without a jury).

n56.  In Elizabeth Morgan's case, for example, the hearing was 
closed to the public, over her objections, and the record of the 
proceeding is sealed.  The court has also ordered the parties not 
to reveal any information about the hearing to the public.  On 
appeal, the court held that the trial court had erred in failing 
to make specific findings on the issue of closure, and remanded 
to enable the lower court to remedy its error.  In dicta, 
however, the appellate court stated that the right to a public 
hearing was not absolute in the evidentiary phase of a civil 
contempt proceeding involving the custody of children, and that 
"our examination suggests that the record would support closure 
in this case." Morgan v. Foretich, 521 A.2d 248, 253 (D.C. 1987).

n57.  Despite the notion that release is within the power of the 
contemnor herself, the deprivation of a person's liberty is 
viewed by this legal system to be such a serious harm that the 
lack of procedural safeguards has been a major issue for 
commentators.  R. GOLDFARB, supra note 42, at 230-35.

The issue of due process is even more worrisome when one 
considers that the determination to hold a party in contempt is 
largely discretionary and as a
consequence, appellate courts, applying an abuse of discretion 
standard, rarely overturn a trial court's contempt order.  See 
Morgan v. Foretich, 546 A.2d 407, 410 (D.C. 1987) (holding lower 
court's decision binding unless clearly erroneous), cert. 
denied, 109 S. Ct. 39 (1989).

Additionally, the custodial parent suffers the torment peculiar 
to all incarcerated parents: separation from her child.  In this 
case, however, the torment is heightened by the inestimable 
fears, lack of knowledge, and lack of information concerning the 
child's precise location and welfare.  Nor can the physical 
separation be ameliorated by regular (or irregular) visits from 
or telephone contact with the child.  For the same, obvious 
reasons, contact by mail is certainly limited if at all possible.

One sees that the noncustodial parent -- the person whose rights 
civil contempt is designed to protect -- in many instances fares 
no better after contempt sanctions than prior to the action for 
contempt.  If the allegations of abuse or harm to the child are in 
fact true, and the child is available for visitation, the 
opportunity for abuse continues.  It is impossible for one to 
argue that an interest in continued abuse of the child is one 
that deserves legal protection.  Whether or not the allegations 
are true, however, the noncustodial parent's interest in contact 
with the child presumes that the child's location is known to the 
noncustodial parent.  Given sufficient time 
and resources, it is probable that a custodial parent who is 
willing to face prison in order to protect her child will make 
arrangements to place the child in a location beyond the reach of 
the noncustodial parent. n58 Under this scenario, one parent is 
incarcerated, and the other parent, the supposed 
"beneficiary" of the contempt proceeding and resulting 
incarceration, has no more access to the child than before the 
custodial parent's imprisonment.

n58.  Monetary resources in this context will undoubtedly make 
the resolution easier.  There is nothing to suggest, however, that 
parents who place their children in hiding, or who live in hiding 
with them, are persons of considerable means.  The "underground" 
network of persons who assist custodial parents on the run may 
operate on a shoestring, but according to Faye Yager, no one is 
turned away for lack of resources.  Telephone Conversation 
Between Faye Yager, Member of Mothers Against Raping Children 
(MARC), and Gayle Middleton, Aug. 18, 1988.

The child is potentially by far the most damaged party.  The use 
of civil contempt appears to produce little by way of promoting 
the child's welfare.  The imprisonment of the custodial parent is 
traumatic in and of itself.  It may be coupled with the guilt that 
children often feel in situations of domestic strife in which they 
blame themselves and feel responsible for family disharmony.  It 
is possible that the child may be cared for by a loving third 
party, or perhaps by the noncustodial parent, and assuming that 
abuse has not in fact occurred, such an arrangement might be 
beneficial to the child.  Other scenarios arise, however.  It is 
possible that the abuse is real, and now the opportunity for 
further abuse of the child exists without the possibility of 
interference or protection by the now-incarcerated custodial 
parent.  A second possibility, the one chosen by Elizabeth Morgan, 
is that the child live in hiding.  Such an "underground" 
existence isolates the child from contact with both parents and 
forces the child to live in an alien and insecure environment. 
n59

n59.  Resources exist to help mothers who believe they must flee 
with their children, or arrange for the children to flee alone, 
in the form of groups such as Mothers Against Raping Children 
(MARC).  The similarity of this predicament with that of slaves 
escaping from the pre-Civil War South is expressed in the term 
"underground railroad." In commenting on life underground, the 
supposed similarity, and one real difference, one writer stated, 
"[m]ore costly . . . is the physical and psychological damage . . 
. .  Typically, the mother is paralyzed by anxiety, the children 
traumatized by indefinite separation from home, school, parents, 
friends, and pets.  The "underground railroad' as a phrase has 
one fatal weakness for these women and children," says Louise 
Armstrong, author of two books on incest.  "There is no North." 
What Makes Mommy Run?, supra note 53, at 42. 
Custodial parents fleeing with their children is a phenomenon 
intimately tied to the use of contempt and incarceration for 
parents who violate court orders.  Some parents, like Morgan, may 
choose jail; many more, preferring to avoid imprisonment, opt to 
live underground with the child.  Statistics on the prevalence of 
this practice are difficult to obtain, since secrecy is inherent 
and the networks try to remain as invisible as possible.  Faye 
Yager of MARC, only one in a web of individuals who place women 
and children in safe homes, estimates that she herself provides 
service to approximately 100 parents with children every four 
months.  See Mothers on the Run, supra note 53, at 52; Telephone 
Conversation Between Faye Yager and Gayle Middleton, Aug. 18, 
1988.
Finally, to the extent that the legal system and society at large 
can be deemed to have an interest in this situation, both appear 
to suffer.  The legal system finds itself in paradoxical 
positions in several ways.  First, the use of civil contempt is 
conceptually unsuitable in custody situations.  The courts have 
long abandoned haggling over children as though they 
were merchandise to whom one or the other party had certain 
rights. n60 Yet it is the civil side of contempt that takes a 
rights-based approach to the problem of the recalcitrant parent.  
Secondly, the custodial parent was chosen by the court because it 
believed that such a decision was in the best interests of the 
child. n61 Now, in a feeble attempt to make sure that the child's 
best interests are being served, the remedy all but assures the 
opposite result.  It could be 
argued that the best interests test is applicable only to the 
initial custody determination, and not to enforcement of the 
custody order itself.  Such as argument, however, seems to be 
splitting hairs and overly legalistic.  It makes no sense to 
recognize the validity of the best interests standard in the 
initial determination and then to ignore it in any subsequent 
actions, especially if the result of those actions operates 
against the best interests of the child. Third, the best 
interests of the child are served by a custodial parent who acts 
to protect a child from harm. n62 Even if the belief is a false 
one, it is the duty of the custodial parent to do whatever is 
necessary for the child's protection.  After giving such 
responsibility to a custodial parent, the court must then place 
itself in the awkward position of incarcerating her 
for taking seriously her custodial responsibilities.

n60.  H. CLARK, supra note 9, at 786-89 (noting that while both 
mother and father are equal candidates for custody, focus in on 
what is in the best interests of the child).

n61.  Id. at 797.

n62.  Harm may be either actual or potential.  One would expect, 
for example,that the custodial parent would not place a child in 
situations in which harm to the child was certain to occur.  
Thus, a parent would not place a child in 
the path of a speeding vehicle, because the parent knows that the 
child would be in danger.  Custodial parents are expected to 
further protect their children, however.  A responsible parent 
entrusted with the care of her child would also not permit the 
child to play by the side of the road.  Even though harm may not 
be certain, it is possible; the prudent caretaker must therefore 
guard the child against potential, as well as actual, harm.  Nor 
do we expect the custodial parent to "play the percentages." One 
would not expect a parent to leave her child in the care of a 
baby sitter whom the parent knows to be a child abuser, but what 
if the parent is not 100% certain?  If the parent were to 
estimate that the probability of abuse to the child were only 50%, 
or even 10%, we expect the possibility of harm to be sufficient 
reason for the parent to refuse the services of the babysitter.  
Moreover, we would expect the parent to refuse. Failure to 
adequately supervise children may constitute neglect and provide 
the state with sufficient reason to remove the child from the 
parent's custody. See OR. REV. STAT. @ 163.545 (1987) (providing 
that persons having custody of a child under the age of ten years 
may be found guilty of criminal neglect, if, with criminal 
negligence, she leaves the child unattended or in a place likely 
to endanger the health or welfare of the child); Wald, State 
Intervention on Behalf of "Neglected" Children: Standards for 
Removal of Children from Their Homes, Monitoring the Status of 
Children in Foster Care, and Termination of Parental Rights, 28 
STAN. L. REV. 625, 700-06 (1976) (proposed legislation 
authorizing removal of child if child has suffered actual injury, 
or there is 
substantial risk of such harm to the child, as result of 
conditions uncorrected by parent or because of parent's failure 
to supervise and protect her); Joint Commission on Juvenile 
Justice Standards, Institute of Judicial Administration and 
American Bar Association (incorporating the previously proposed 
standard and providing for state intervention when a child has 
been sexually abused "by another person where the parent knew or 
should have known and failed to take appropriate action."); State 
v. Goff, 675 P.2d 1093 (Or. Ct. App. 1984) (acquitting parent of 
criminal negligence in the absence of evidence establishing 
knowledge of substantial risk to children).

From a societal point of view, the situation is equally 
untenable.  The society as a whole does not benefit from 
incarcerating a custodial parent for an indefinite term.  It is 
the custodial parent whom the society expects will take on the 
responsibilities of child rearing.  The immediate costs inherent 
in removing the custodial parent from the role of caretaker (the 
need for another caretaker, private or public) are obvious.  Long-
term, hidden costs are more speculative.  Particularly if the 
child is placed in hiding by her custodial parent, as in the 
Morgan case, one is left to wonder about the long-term effects of 
disruption of education, lack of adequate health care for fear of 
being discovered, and the psychological toll on the child's well-
being.  What societal resources may be called upon to perform the 
task of nurturing, and the task of dealing with those children 
for whom nurturing became impossible by dint of
their custodial parent's imprisonment?

Moreover, one could argue that it is the irresponsible parent, 
the one who fails to protect her child, who is costly to the 
community.  Sexual abuse victims may require, at a minimum, the 
resources of the mental health profession. n63 In addition, while 
long-term effects of sexual abuse of children are still not 
completely known, research shows that children who were sexually 
abused may be unable to form appropriate marital and parental 
relationships in adult life. n64 To the extent, then, that 
society uses the law to send a message to the public, the message 
is that self-risk in the protection of one's child is not valued, 
and in fact, may harm both the parent and child.

n63.  Short term effects of sexual abuse on young victims include 
self-destructive behavior, anxiety, depression, impaired ability 
to trust others, guilt, delinquent behavior including truancy, 
and sexually inappropriate behavior.  Browne and Finkelhor, The 
Impact of Child Sexual Abuse: A Review of the Research, 99 
PSYCHOLOGICAL BULL. NO. 1 66, 66-68 (1986).

n64.  Id. at 69-72.

An argument could be made that the draconian nature of civil 
contempt, particularly in this context, has already been softened 
by general 
developments in the law of civil contempt.  For the contemnor, 
like Morgan, who refuses to purge herself by complying with the 
court order, there is another possibility for release.  Since the 
purpose of incarceration is to force the contemnor to obey, once 
incarceration loses its coercive power, there is no reason for 
the incarceration to continue.  Courts, therefore, have released 
persons under the belief that continued imprisonment will not 
have the desired effect of persuading the contemnor to abide by 
the order. n65 While somewhat incongruous, the contemnor 
can therefore secure her release not by changing her mind, but by 
holding ever more firmly to the original belief that resulted in 
her imprisonment in the first place.  A second "safety valve" is 
the willingness of some courts to find a potential contemnor to be 
innocent of contempt because, if motivated by feelings as 
intractable as those of Morgan, she may be said to be "unable" to 
comply with the court order.  Inability to comply has always been 
a defense to a charge of civil contempt. n66

n65.  See, e.g., King v. Department of Social Serv. and Health, 
47 Wash. App.816, 826, 738 P.2d 289, 294 (1987) (finding that 
contemnor's confinement had become punitive after eleven months' 
confinement for refusal to disclose location of child); In re 
Parrish, 613 F. Supp. 356, 357 (S.D.N.Y. 1985) (finding no 
realistic possibility that continued confinement would cause 
contemnor to testify); In re Dohrn, 560 F. Supp.  179, 183 
(S.D.N.Y. 1983) (noting that release of contemnor justified 
because recalcitrance would have 
continued); In re Farr, 36 Cal. 3d 577, 584, 111 Cal. Rptr. 649, 
654 (Cal. Ct. App. 1974) (concluding that it was necessary to 
determine point at which confinement ceased to serve coercive 
purpose).  n66.  See Maggio v. Zeitz, 333 U.S. 56, 72-73 (1947) 
(stating that coercive contempt order should not issue when no 
willful disobedience exists).

The first possibility, that the contemnor can secure her release 
by remaining ever more immovable in her refusal to obey, has been 
successfully claimed by contemnors in some cases. n67 As a 
general rule, however, this is a difficult task.  The test 
requires the contemnor, as a threshold, to prove a state of mind, 
not an impossible but always a difficult endeavor. n68 Moreover, 
not only must the court be convinced of the sincerity of the 
contemnor's belief, it must also make an independent judgment as 
to whether continued imprisonment will effect a change of heart.  
In other words, the court may believe that the contemnor's 
original belief is sincere and that she also believes that 
additional time in jail will do nothing to dissuade her.  
Nevertheless, the court can still disagree with her and find that 
continued incarceration is substantially likely to coerce her to 
comply at some point. n69 Secondly, the court's decision on this 
issue is   "virtually unreviewable." n70 Finally, while 
at some point the refusal to be coerced may provide release for 
the contemnor, she is still incarcerated for what could be a substantial
period of time.  The problems inherent in the use of civil 
contempt are not really ameliorated, but rather, they continue to 
exist albeit for a relatively shorter period.

n67.  See supra note 65 (listing successful cases); see also In 
re Papadakis,  613 F. Supp. 109, 109 (S.D.N.Y 1985) (finding no 
realistic possibility that further confinement would induce 
testimony).

n68.  See Simkin v. United States, 715 F.2d 34 (2d Cir. 1983).  
In Simkin, the Second Circuit enunciated a standard judges can 
use to determine if a civil contempt sanction has lost its 
coercive effect.  The judge must make "a conscientious effort to 
determine whether there remains a realistic possibility that 
continued confinement might cause the contemnor to testify." Id. 
at 37. Moreover, the burden rests with the contemnor to 
demonstrate that no such realistic possibility exists.  Id. See 
also Lambert v. Montana, 545 F.2d 87, 95 (9th Cir. 1976) (noting 
that contemnor has burden of proving that continued confinement 
will not cause him to change his mind and testify).

n69.  United States v. Dien, 598 F.2d 743, 745 (2d Cir. 1979).  
In Dien, the Second Circuit explained that "[e]ven if the judge 
concludes that it is the contemnor's present intention never to 
testify, that conclusion does not preclude the possibility that 
continued confinement will cause the witness to
change his mind." Id. In In re Parrish, the court stated:

The contemnor may conscientiously believe at the time he 
testifies that incarceration will not coerce him into compliance, 
but the issue is not whether the contemnor believes there is no 
realistic possibility that continued confinement might cause him 
to testify; rather, if whether the district judge believes, based 
on all the circumstances pertinent to that contemnor, that no 
such realistic possibility exists.

In Re Parrish, 613 F. Supp. 109 (S.D.N.Y. 1985) (emphasis added).  
See also In re Crededio, 759 F.2d 589, 593 (7th Cir. 1985) 
(affirming lower court's determination that confinement had not 
lost its coercive nature); In re Cantazaro, 663 F.  Supp. 1, 2 
(D.D.C. 1985) (affirming decision to deny release of contemnor 
because judge was not convinced that continued incarceration 
would not coerce contemnor to testify).  But see Sanchez v. 
United States, 725 F.2d 29, 31 (2d Cir. 1984) (holding that 
contemnor was not required to demonstrate unusual circumstances 
for failure to testify).

n70.  Simkin v. United States, 715 F.2d 34, 38 (2d Cir. 1983).

The second possibility, that persons in Morgan's shoes should be 
found to be "unable" rather than "unwilling" to comply, presents 
interesting
possibilities.  Such an approach does not seem to have found much 
favor, however, nor is it likely to.  Science and social science 
might be able to provide evidence of biological instinct or 
social mores so strong that a custodial parent would find any 
conduct other than protection of the child to be impossible, but 
to date, the lack of reported cases indicates that this has been 
either an untried or an unsuccessful defense.

The best that can be said about the use of civil contempt in 
recalcitrant custodial parent situations is that when it works, 
it works.  Data are not available to indicate how many parents 
have backed down when faced with a contempt charge; it is not 
unheard of for some to give up after a period of incarceration. 
n71 As the Morgan case demonstrates, however, some parents will 
not feel themselves able to betray their ideals and their 
children.  Goldfarb has written that "[i]n contempt cases . . ., 
where the issues are grounded in deep personal ideals, there is 
little hope of inducing a moral change.  While it  is not 
necessarily bad for man to suffer for his convictions, . . . it 
is cruel and onerous to continue his punishment indefinitely." 
n72 When the threat of prison or prison itself fails to move a 
parent into compliance, the result is an abhorrent one in which 
everyone loses, most of all the child whose best interests the 
court must always protect.

n71.  See Wilkinson, supra note 53, at 105 (reporting that Karen 
Newsom relented after one month in jail after alleging her 
husband was molesting their daughter).

n72.  R. GOLDFARB, supra note 42, at 55.  III.  
CRIMINAL CONTEMPT

Criminal contempt is another remedy available to courts in these 
situations. Courts could, in lieu of charging the person with 
civil contempt and thereby attempting to coerce compliance, shift 
their focus and view the matter as one in which punishment is the 
objective. n73 From the contemnor's point of view, there are two 
advantages to the use of criminal rather than civil contempt.  
First, criminal contempt brings with it a definite sentence.  
Secondly, a charge of criminal contempt requires the procedural 
safeguards that are noticeably absent in a civil contempt 
proceeding. n74 These include notice of the charge and a specific 
characterization of the criminal nature of the charge, the right 
to adequate time to prepare a defense and the right to an 
attorney. n75 Contemnors also have the right to have witnesses 
testify in their behalf. n76 Constitutional protections from 
double jeopardy and from self-incrimination apply, and contemnors 
must be found guilty beyond a reasonable doubt. n77 Perhaps most 
significantly, the Supreme Court has held that in both federal 
and state criminal contempt proceedings the accused has the right 
to a jury trial for other than petty offenses, defined as one for 
which the sentence is less than six months. n78 Another important 
distinction between civil and criminal contempt is that criminal 
contempt is subject to executive pardon while civil contempt is 
not. n79 Thus, criminal contempt appears to eliminate the due 
process questions that plague the use of civil contempt and to 
result in a definite, and perhaps shorter, sentence. n80

   n73.  This is not to suggest that the court must choose between civil
and criminal contempt, as it is possible for the court to use both.  
See R. GOLDFARB, supra note 42, at 48.

n74.  See Shillitani v. United States, 384 U.S.  364, 371 (1966) 
(noting that contemnor's defiance justifies lack of procedural 
safeguards of civil contempt). n75.  United Mine Workers v. 
United States, 330 U.S. 258, 298-301 (1947).

n76.  Cooke v. United States, 267 U.S. 517, 537 (1925).

n77.  Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 444 
(1911).

n78.  See Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968) 
(analyzing historical basis for holding petty offenses not 
subject to sixth amendment jury trial provision); Bloom v. 
Illinois, 391 U.S. 194, 210 (1968) (ruling that petty crimes need 
not be tried by jury); Cheff v. Schnackenberg, 384 U.S. 373, 380 
(1966) (holding that federal courts may not impose sentence 
longer than six months for criminal contempt absent jury trial or 
waiver).

   n79.  R. GOLDFARB, supra note 42, at 48.
n80.  Ironically, as one student commentator noted, "as 
restrictions have accrued upon the power to punish criminal 
contempt, there has been increasing resort to the less inhibited 
coercive contempt sanctions.  Hence the undiscriminating 
classification of the latter as a civil remedy may conceal the 
need for adequate safeguards." Note, supra note 40, at 102.  
Given that courts can, in a given situation, choose the charge, 
it is evident that it is administratively easier for the court to 
charge the contemnor with civil, not criminal, contempt.  It is 
important to realize then that criminal contempt is an option of 
the court, and that procedural safeguards can then be bestowed or 
not, depending on what the court chooses to call the proceeding.

   These advantages, as significant as they might be, do little, however,
to address the other problems discussed in connection with civil
contempt.  Incarceration of the custodial parent produces all of 
the same problems for her, the child, and the noncustodial 
parent.  With the exception of a possible shorter sentence, none 
of the parties will care, from a practical point of view, 
whether the proceeding is deemed civil or criminal.  The 
hardships will be the same.  Moreover, the message implied in 
incarceration for criminal contempt is perhaps even stronger, and 
less appropriate than that sent by the courts in civil contempt 
proceedings: acting to protect one's child results in criminal 
incarceration and is viewed by the legal system as an act 
deserving punishment.

IV.  THE NECESSITY DEFENSE

Having established that the use of civil contempt is a 
problematic solution to a parent who believes herself to be 
acting to protect her child, and having seen that the use of 
criminal contempt, though perhaps more sensitive to the 
contemnor's constitutional rights, may be just as unworkable, 
what should courts do with the recalcitrant custodial parent?  The 
following sections will examine the doctrine of necessity, apply 
it to the present situation, critique the analysis of the Alaska 
Court of Appeals in Gerlach v. State, n81 and examine what 
custodial interference statutes may or may not contribute to 
solving the problem.

n81.  699 P.2d 358 (Alaska Ct. App. 1985).  In Gerlach, the court 
applied and rejected a defense of necessity in a criminal 
prosecution for custodial interference.

The common law defense of necessity is somewhat vague in 
definition, varied in application, of questionable 
effectiveness, and a source of discomfort to judges who must 
grapple with it. n82 Generally speaking, the defense of necessity 
is available to those who can assert that they engaged in an 
unlawful act to avoid an even greater harm. n83 The defense finds 
its underpinnings in natural law and to some extent in 
utilitarian philosophy. n84 Given the tension between 
the philosophical roots of the necessity defense and the 
rationale for a system of criminal justice, it is not surprising 
that while necessity has been part of Anglo-American 
jurisprudence for some time, n85 its use has been restrictive. 
n86

n82.  The confusion surrounding the necessity defense, even as it 
haltingly grows more acceptable, was recognized by the Supreme 
Court in United States v. Bailey, 444 U.S. 394 (1980), where the 
Court stated that, "in explaining the reasons for our decision, 
we find ourselves in the position akin to that of the mother crab 
who is trying to teach her progeny to walk in a straight line, 
and finally in desperation exclaims, 'Don't do as I do, do as I 
say."' ID. at 397. See also Note, Necessity Defined: A New Role 
in the Criminal Defense System,
29 U.C.L.A. L.  REV. 409, 410 (1981) (citing Bailey as 
representing reluctance of courts "to base a decision on the 
necessity principle.").

n83.  United States v. Richardson, 588 F.2d 1235, 1239 (9th Cir. 
1978), cert, denied, 441 U.S. 931 (1979); Arnolds & Garland, The 
Defense of Necessity in Criminal Law: The Right to Choose the 
Lesser Evil, 65 J. CRIM. L. & CRIMINOLOGY 289, 291 (1974).  See 
also Note, supra note 82, at 438 (analyzing necessity defense in 
terms of cost benefit analysis).

n84.  See Surocco v. Geary, 3 Cal. 69 (1853) (stating that one 
can destroy property if such action will prevent disaster).

n85.  See, e.g., The Case of the King's Prerogative in Saltpetre, 
12 Co. Rep.17, 77 Eng.  Rep. 1294 (1607) (taking of saltpeter was 
necessary for making gunpowder and defense of realm); The Queen 
v. Dudley and Stephens, 14 Q.B.D. 273, 286 (1884) (rejecting 
utilitarian rationale justifying taking innocent life for food for 
survival); United States v. Holmes, 26 F.  Cas. 360, 368 
(C.C.E.D. Pa. 1842) (No. 15,383) (precluding consideration of 
necessity defense for manslaughter for sailors' throwing of 
passengers off overcrowded lifeboat).

n86.  Note, supra note 82, at 410-16 (providing historical 
analysis of necessity defense). 
This defense has been raised in a wide range of factual settings.  
In recent times, the defense has been asserted in cases involving 
political protest, n87 escape from prison, n88 kidnapping and 
reprogramming members of religious cults, n89 and possession and 
use of marijuana. n90 Courts have sought, from time to time, to 
exclude certain categories of cases from the reach of the 
necessity defense, n91 usually over concerns of morality (as in 
cases involving the taking of a life) or excessive concern for 
deterrence (economic crimes, for which, in a capitalist system, 
deterrence is paramount, and crimes involving prison escape, for 
which public safety is the issue).

n87.  United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972) 
(holding that common law justification was not available because 
defendant's action was not unreasonable); Commonwealth v. 
Capitolo, 508 Pa. 372, 381, 498 A.2d 806, 809(1985) (holding 
necessity defense not available to nuclear protesters); State 
v.Warshow, 138 Vt. 22, 25, 410 A.2d 1000, 1002 (1979) (concluding 
that evidence of danger of nuclear accidents does not fulfill 
imminent and compelling harm element of necessity defense); State 
v. Dorsey, 118 N.H. 844, 847, 395 A.2d 855,857 (1978) (upholding 
criminal trespass for failure to establish statutory defense of 
"competing harms").

n88.  People v. McKnight, 626 P.2d 678, 684 (Colo. 1981) (en 
banc) (rejecting"choice of evils" defense of escapes); 
Commonwealth v. Clark, 429 A.2d.  695, 
698 (Pa. Super. 1981) (finding that adverse prison conditions do 
not support necessity defense to charge of prison escape); People 
v. Lovercamp, 43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115 
(1974) (enunciating limited defense of necessity for prison 
escapees).

n89.  People v. Patrick, 126 Cal. App. 3d 952, 960, 179 Cal. 
Rptr. 276, 281 (1981) (finding that cult reprogrammer did not 
meet elements of necessity defense).

n90.  State v. Diana, 24 Wash. App. 908, 916, 604 P.2d 1312, 1317 
(1979) (applying medical necessity defense to use of marijuana 
for multiple sclerosis).See also Note, Medical Necessity as a 
Defense to Criminal Liability: United States v. Randall, 46 GEO. 
WASH. L. REV. 273, 276-78 (1978).

n91.  See Note, supra note 82, at 419-23 (discussing cases 
involving homicide, economic crimes (from stealing loaf of bread 
to prevent starvation to modern equivalent: welfare fraud), and 
emergencies caused by actor herself).

The elements of the defense vary from jurisdiction to 
jurisdiction; some states have codified the defense. n92 For the 
sake of discussion, the definition of necessity will be that set 
forth in the Model Penal Code:

n92.  See, e.g., COLO. REV. STAT. @ 18-1-708 (1986 & Supp. 1988); 
ILL. REV. STAT. ch. 38, para. 7-13 (1972 & Supp. 1988); KY. REV. 
STAT. ANN. @ 503.030 (Baldwin 1984 & Supp. 1988); N.H. REV. STAT. 
ANN. @ 627:3 (1986 & Supp. 1988); N.Y. PENAL LAW @ 35.05 
(McKinney 1987 & Supp. 1989); 18 PA. CONS. STAT. ANN. @ 503 
(Purdon 1983 & Supp. 1988). Section 3.02 Justification 
Generally: Choice of Evils

(1) Conduct that the actor believes to be necessary to avoid a 
harm or evil to himself or to another is justifiable, provided 
that:

(a) The harm or evil sought to be avoided by such conduct is 
greater than that sought to be prevented by the law defining the 
offense charged; and

(b) neither the Code nor other law defining the offense provides 
exceptions or defenses dealing with the specific situation 
involved; and

(c) a legislative purpose to exclude the justification claimed 
does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about 
the situation requiring a choice of harms or evils or in 
appraising the necessity for his                                       
conduct, the justification afforded by this Section is 
unavailable in a prosecution for any offense for which 
recklessness or negligence, as the case may be, suffices to 
establish culpability. n93    n93.  American Law Institute, MODEL 
PENAL CODE @ 3.02 (1985).

The first element of necessity is the heart of the defense.  
Applying it to the case of the recalcitrant custodial parent, she 
must believe that violating the court order is necessary in order 
to prevent harm to the child.  This is somewhat in accord with 
case and statutory law in many jurisdictions that state that the 
conduct chosen must be the only alternative available, except 
that the Model Penal Code requires only that the actor believe 
that the chosen conduct is the sole avenue open to her. n94 If the 
standard is a subjective one, as set forth in the Code, the court 
would look at all of the facts to make a determination of the 
sincerity of the custodial parent's belief.  A finding by the 
court that she believed that violation of the court order was 
"necessary" (i.e., there was no other course open to her) is the 
first step in finding her conduct justified.

n94.  Note, supra note 82, at 416-17 n.42 (identifying New York, 
Delaware, Illinois, New Hampshire, Oregon, and Pennsylvania as 
states enacting necessity defense statutes).
In some jurisdictions, this subjective standard is not part of 
the necessity defense; in its stead is an objective, rather than 
subjective, test. n95 Under an objective standard, the custodial 
parent must prove that there was nothing else she could do.  
Obviously, the task of proving no actual alternatives is a more 
difficult one.

n95.  See Gerlach v. State, 699 P.2d 358, 360 (Alaska Ct. App. 
1985) (giving objective determination to decide if defendant's 
judgment was correct); see also note, supra note 82, at 428-29 
nn.95-96 (listing states that have enacted necessity defense 
statutes).

In Gerlach v. State, n96 for example, a mother hid her daughter 
out of state for over a year in violation of a modified custody 
agreement that gave temporary custody of the child to her 
estranged husband.  The   court held that Gerlach could 
not defend the charge of custodial interference with necessity. 
n97 Despite Gerlach's concerns about her financial situation and 
her ability to continue to pay for her lawyer's services, the 
court reasoned that the defense was inapplicable because the 
parent had another alternative -- the court. n98

n96.  699 P.2d 358 (Alaska Ct. App. 1985).

n97.  Gerlach, 699 P.2d at 363.

n98.  Id. at 362.

Assuming an objective test, rather than that suggested by the 
Model Penal Code, the reasoning of the court in Gerlach on this 
point is troubling.  Every jurisdiction has laws dealing with 
the custody and protection of children and a court system for 
resolving these matters. n99 If the court's reasoning in Gerlach 
holds sway, it is difficult to imagine how the defense would ever 
be applicable in those jurisdictions that adhere to the more 
stringent, objective test.  Two possibilities exist, however; one 
within the confines of the Gerlach holding and the other 
requiring a rejection of the Gerlach rationale.

n99.  See H. CLARK, supra note 9, at 791-849 (reviewing remedies 
and procedures for custody of children).

Even within the logic of the Gerlach opinion, the holding is not 
as universally applicable as it may first appear.  First, it 
assumes that litigation is still an alternative.  Thus if the 
custodial parent could make a showing that she has exhausted her 
remedies at law, the legal system would have no other alternative 
to offer her.  Going to court and losing, therefore, may be a 
prerequisite to a successful necessity defense. n100 Secondly, for 
unknown reasons, the court simply ignored Gerlach's financial plight.  
It is indisputable that access to the court system is not free; 
poverty may act as a barrier to the theoretical availability of 
the legal system as a real alternative.  Particularly in 
domestic cases, in which contingent fee arrangements are 
impossible, many potential consumers of the court system are left 
waiting at the courthouse door. n101 Third, if the legal system 
is to be touted as offering an alternative to the custodial 
parent, a more careful analysis of this point must be made.  If, 
for example, as in Gerlach,a modification proceeding 
is viewed as an alternative, one needs to examine the timeliness 
and efficacy of this option.  Availability might depend on the 
congestion of the court, the accessibility of the judge, and the 
provisions of the law regarding temporary orders.  A modification 
proceeding may be an alternative.  A modification proceeding with 
a hearing scheduled three weeks or months into the future and a 
bond requirement for a restraining order may not be a viable 
alternative.  All of the foregoing does not reject the rationale 
of the court in Gerlach, but it does suggest that a court must 
probe more deeply into the facts in order to separate real from 
illusory alternatives.

n100.  But see Ladner v. Ladner, 206 So. 2d 620, 624 (Miss. 
1968).  In this case, the court held that evidence previously 
raised in a court proceeding could not form the basis for a 
defense to a charge of contempt against a father who violated an 
order granting visitation rights to the mother.  Id. The 
argument appears to be a sort of estoppel; if the court did not 
find it persuasive in the prior proceeding on the merits, it will 
not revisit the same evidence in the contempt proceeding.

n101.  Statutes allowing recovery of attorney fees from the 
opposing party in domestic actions may make this argument less 
persuasive.  In many situations, however, those statutes make an 
award of fees discretionary, not mandatory.  See fla. STAT. @ 
61.16 (1984) (giving court discretion to order party to pay 
reasonable attorneys' fees).  In theory, this may make attorneys 
available to those who could not otherwise afford them.  In 
practice, however, the potential award of attorneys' fees may 
have little effect.

A second argument is that the court's finding in Gerlach (i.e., 
that the legal system provides an alternative) was simply wrong; 
it fails to reflect an understanding of why parents are taking 
drastic measures to avoid the legal system.  The real problem is 
that the legal system is not functioning effectively in 
situations such as these.  Even assuming that one can pay for 
access to the legal system and therefore, financial ability is 
not an issue, it is ludicrous to think that custodial parents 
choose an underground existence for themselves and their children 
unless they have found the law lacking.  The problems with 
proving a case in court, set forth at the beginning of this 
Article, may mean that not only does the lack of alternatives 
exist in the mind of the custodial parent, it exists in fact. n102

   n102.  See supra notes 8-39 and accompanying text (discussing custodial
parent's lack of available alternatives).

The importance of the Model Penal Code approach, then, is that it 
would not =seek to punish the parent who acts under a good faith 
belief that she chose the only course open to her.  In 
jurisdictions that require an objective test on the element of 
availability of other alternatives, the Gerlach reasoning may 
make this a more difficult, though not impossible, element to 
satisfy.

The second element of the Code's definition of the defense is 
that the action taken must be for the purpose of avoiding a harm 
or evil.  Again, the Code would find the custodial parent's 
conduct justified whether or not the harm actually exists as long 
as she acts on the good faith belief that it does.  This is not 
very different from the law in jurisdictions that hold that the 
harm sought to be avoided need not be actual; a reasonable belief 
is sufficient. n103 Assuming a subjective test, the 
custodial parent is relieved from the burden that may have caused 
the situation initially -- proof that abuse by the other parent 
did in fact occur.  In jurisdictions requiring a "reasonable" 
belief, what is "reasonable" will depend of course on the 
circumstances.  This standard would, therefore, probably prevent 
the application of the necessity defense 
when no evidence, or extremely weak evidence, of abuse exists. n104

n103.  See People v. Manson, 61 Cal. App. 3d 102, 206, 132 Cal. 
Rptr. 265, 329 (1976) (noting that defense of compulsion requires 
evidence that accused =acted on reasonable cause and belief that 
her life was in danger), cert. denied,430 U.S. 986 (1977); see 
also Note, supra note 82, at 428 n.95 (giving examples of 
statutes including Arkansas, Georgia, Idaho, Minnesota, Montana, 
and Washington).

n104.  The prospect of a custodial parent maintaining a good 
faith belief of abuse in the absence of any evidence of any kind 
pushes the necessity defense to its limits.  It may raise the 
question of why the custodial parent should be found innocent of 
contempt and therefore take from the other parent what is 
perceived to be the only teeth in the order itself -- the 
possibility of enforcement.  The consideration of the Model Penal 
Code is one of culpability, and therefore, whether the actor is 
mistaken or not, the Code does not contemplate punishment for 
those who act in good faith.

The final component in the Code's definition of the defense is 
the recognition that one may act to protect another as well as 
one's self.  Thus it is legitimate for the custodial parent to 
act to protect her child even if she herself is in no danger.  
Defense of others as opposed to defense of self
appears to be a non-issue in the context of the necessity 
defense.  American courts have long recognized that one may 
assert the defense in cases in which the actor has sought to help 
third parties. n105  n105.  See Surocco v. Geary, 3 Cal. 69 
(1853) (holding that administrator could destroy property for 
benefit of populace).  Many of the cases in which necessity has 
been raised in connection with acts of political protest involve 
assisting third parties.  See supra note 87 (citing political 
protest cases involving necessity defense).

   The Model Penal Code next lists three caveats.  The first is that 
the harm sought to be avoided is greater than that sought to be prevented 
by the law defining the offense charged.  Defining the harm 
sought to be avoided is relatively easy: sexual abuse of the 
child.  The harm sought to be prevented by the law defining the 
offense is more difficult because it may be subject to more than 
one interpretation.  What harm, for example, does a law (or the 
provisions of the court order itself) requiring compliance with 
the court order establishing visitation rights seek to avoid?  
Disrespect for the court? Disorderly administration of domestic 
affairs?  Deprivation of the parent/child relationship?  Assuming 
that one can ascertain the precise harm caused by the custodial 
parent (or perhaps one would need to balance each of them), the 
next inquiry is how to decide which is worse?  Should courts, for 
example, look at
the penalties assigned to each, i.e. a felony can be avoided by 
committing a misdemeanor, but not vice versa?  And what if the 
"harm done" is not a crime at all?

The court in Gerlach sheds some light on how courts interpret -- 
or misinterpret -- this element.  The court found against the 
defendant on this issue.  With little explanation, the 
court held that the possibility of child abuse was of less 
consequence than the harm to the noncustodial parent, which was 
the foregoing of visitation rights.  It is difficult to 
understand the court's logic, other than to view it as a blatant 
preference of parental rights over those of the child.  While 
defining the harms and balancing them may not be an easy task, 
this case seems to present a less troublesome task than most.  
The rights of the noncustodial parent to see the child, perhaps 
the most compelling of all of the possible rights being 
protected, seem to pale by comparison to the child's right to 
personal integrity and safety.  The court in Gerlach might have 
done well to look at the history of the law's intent in providing 
for visitation rights.  The law has long since abandoned its 
focus on the rights of parents in custody and visitation 
determinations and is now guided by the best interests of the 
child.  Thus, in balancing between avoidance of harm to the 
noncustodial parent versus avoidance of possible harm to the 
child, it would be consistent with general principles of child 
custody law to undervalue the parent's rights to visit. n106 
n106.  See Beckham v. O'Brien, 176 Ga. App. 518, 519-20, 336 
S.E.2d 375, 377 (1985).  The court in Beckham was eloquent in its 
defense of the child's rights in this situation.  A factual 
difference, i.e. the father's indictment for molesting his 
daughter, persuaded the court not to hold the mother in contempt 
despite the assertion by the father of the presumption of 
innocence.  Id. at 522, 336 S.E.2d at 377.

The two remaining caveats in the Code -- that no other specific 
statute defining defenses exist and that the legislature cannot 
have excluded the application of the defense to the particular 
situation -- are easier to determine and will vary more widely 
among jurisdictions.  Unfortunately, or fortunately, for the 
recalcitrant custodial parent, many states have enacted statutes 
prohibiting custodial interference. n107 The existence and 
language of those statutes, whether they may help or hurt, have 
made the question of the applicability of the necessity defense 
in these cases a little murkier.

n107.  E.g., ALASKA STAT. @ XI (1983) (making custodial 
interference first degree class C felony).

V.  CUSTODIAL INTERFERENCE STATUTES

As previously explained, some states have sought to limit the 
scope of the necessity defense by excluding certain kinds of 
cases from its application. n108Accordingly, states could 
prohibit, by statute or by common law, use of the   necessity 
defense in cases involving custodial parents who violate court 
orders or otherwise interfere with the visitation 
rights of a noncustodial parent.  Given the relatively few 
categories of cases so excluded, this appears unlikely.

Nonetheless, some states have responded to a growing public 
awareness of the problem of enforcing court orders in domestic 
cases by enacting what will be generically called "custodial 
interference" statutes. n109 They are germane here because, in 
some instances, they provide a legislatively-sanctioned statutory 
necessity defense to the crime of custodial interference and 
therefore recognize the realities of a situation akin to that in 
Morgan. On the other hand, these statutes may, unwittingly 
perhaps, limit the use of the common law, or generic statutory 
necessity defenses.  For purposes of discussion, this Article 
will examine two such representative statutes, one from the 
District of Columbia and one from the State of Florida.

n108.  See supra note 91 and accompanying text (discussing
instances in which application of necessity defense was limited).
n109.  See, e.g., ARIZ. REV. STAT. ANN. @ 13-1302 (1977); N.Y. 
PENAL LAW @ 135.45(1) (McKinney 1987); OR. REV. STAT. @ 
163.245(1) (1987); UTAH CODE ANN. @ 76.5-303(1) (1982).

The newly-enacted District of Columbia statute provides in 
section 16-1022: "No parent, or any person acting pursuant to 
directions from the parent, may intentionally conceal a child 
from the child's other parent." n110 It further provides in 
section 16-1023, that: "No person violates this act [subchapter] 
if the action: (1) is taken to protect the child from imminent 
physical harm." n111The statute goes to provide that a person who 
violates section 16-1022 and who wishes to avail herself of the 
defense set out in section 16-1023 must file a petition in the 
court seeking modification of the court order (or seeking a court 
order itself if one does not exist) and must state that "at the 
time the act was done, a failure to do the act would have 
resulted in a clear and present danger to the health, safety, or 
welfare of the child . . . ." n112 Further, the statute provides 
that if the petition is filed "a finding by the court that, at 
the time the act was done, a failure to do the act would have 
resulted in a clear and present danger to the health, safety, or 
welfare of the child is a complete defense to prosecution under 
this act." n113

n110.  D.C. CODE ANN. @ 16-1022 (Supp. 1988).

n111.  Id. @ 16-1023.

n112.  Id. @ 16-1023(b)(1).

n113.  Id. @ 16-1023(c).

In evaluating the District of Columbia statute, it is helpful to 
reexamine the second caveat of the Model Penal Code, that the 
general defense of necessity will not apply if a statute defines 
the offense and provides specific defenses. Under this caveat, 
the above statute may preclude use of a common law or statutory 
necessity defense.  In cases in which the custodial parent is 
charged with a crime under the custodial interference 
statute, the defense surely would be excluded; defenses are 
specifically enumerated in the statute.  Moreover, while the 
District of Columbia statute appears to provide for something 
akin to the necessity defense, the subjective element is missing. 
Under the language of the statute, a good faith, even reasonable, 
belief that the child would be abused would not be sufficient.  
The court would have to find that there was in fact an actual 
clear and present danger to the health, safety,or welfare of the 
child. n114 Custodial interference statutory defenses such as the 
one enacted in the District of Columbia, therefore, will not only 
hurt custodial parents with a reasonable belief but inability to 
prove abuse but may rule out the use of the general necessity 
defense for them as well.
n114.  See id. @ 16-1023(b)(1).

   There are still two other possibilities for retaining the necessity
defense in states that have enacted custodial interference statutes like 
that of the District of Columbia.  Some of those states may not 
have adopted the caveat in the Model Penal Code regarding the 
existence of specific statutes.  The District of Columbia has no 
statutory necessity defense and one could interpret the statute 
as providing a defense without precluding others, including the 
common law necessity defense.  Secondly, not all custodial 
interference statutes set forth exceptions or defenses as does 
the District of Columbia statute.  Thus, the above discussed 
caveat of the Model Penal Code is inapplicable in those states.

By contrast to the District of Columbia statute, a modified 
necessity defense was incorporated into the Florida custodial 
interference statute.  After defining interference with custody, 
the Florida statute provides: "It is a defense that the defendant 
reasonably believes that his action was necessary to preserve the 
child . . . from danger to his welfare." n115 With a statute like 
that of Florida, it becomes even less important whether or not 
the state has adopted the provisions of the Model Penal Code.  
The statute itself allows protection for the custodial parent who 
reasonably believes abuse has occurred, whether or not abuse has 
actually occurred and is provable. n116                            
n115.  FLA. STAT. @ 787.03(2)(a) (1981).

n116.  See id. The Florida statute includes the word "reasonably"
before the word "believed" in order to eliminate the possibility
of an individual escaping =criminal prosecution because of any
ill-advised or whimsical belief that her
conduct was justified.  See id. @ 787.03 (1974 Committee 
Comment).

Custodial parents who flee with their children, or who choose 
jail and secrete their children outside of the state, however, 
may not fare as well in Florida if a court order exists 
and the court order restricts the location of the child to the 
state of Florida.  A separate Florida statute, which makes it a 
felony to remove children from the state contrary to court order, 
provides no equivalent necessity defense. n117 In fact, the 
statute enumerates no defenses.  A custodial parent whose court 
order contains restrictive residence provisions cannot rely, 
therefore, on the specific statutory defense of the preceding 
section.  As previously stated, however, given that this section 
lists no exceptions or defenses at all, the general necessity 
defense may still be available.

n117.  Id. @ 787.04(1).

Once again, the Model Penal Code is instructive.  The final 
caveat of the Code is that a legislative purpose to exclude the 
justification claimed must not plainly appear in the statute 
outlawing the substantive crime. n118 Clearly, =states are free 
to limit the scope of the defense.  The problem, however, is 
figuring out what "plainly appear" means.  It is not clear if the 
presence of a necessity defense in Florida's custodial 
interference statute, and its absence in the following section 
regarding removing children from the state, is a "plain" 
appearance of legislative purpose to exclude the defense from the 
second statute.

n118.  See American Law Institute, MODEL PENAL CODE @ 3.02(1)(c) 
(1985). Another restriction in the Code focuses upon the 
applicability of the defense. Recklessness or negligence on the 
part of the actor in bringing about the situation requiring the 
choice of evils may operate to bar the defense when recklessness 
or negligence is an element of the offense charged.  Id. @ 
3.02(2).This restriction does not seem relevant here and 
therefore will not be discussed.

To summarize, custodial interference statutes may or may not 
assist custodial parents who seek to raise the necessity defense 
in criminal proceedings.  Where such statutes exist, the question 
of applicability of the defense will depend upon whether the 
state has adopted the Model Penal Code                           
(or its equivalent) standard, whether other statutes specify 
defenses, and if so, whether the language of the statute 
incorporates a true necessity defense (good faith belief), a 
modified defense (reasonable belief), or requires the =parent to 
prove actual harm.

VI.  THE NECESSITY DEFENSE AND CONTEMPT

Necessity should be available as a defense to custodial parents 
charged with civil or criminal contempt.  The precise test to be 
applied could be that of the Model Penal Code, in which a good 
faith belief that the conduct taken was necessary to prevent harm 
is sufficient, n119 or a more modified standard 
requiring that the belief also be a reasonable one. n120

n119.  See id. @ 3.02(1) (providing that conduct that actor 
subjectively believes to be necessary to avoid evil to himself or 
another is justifiable).

n120.  See supra notes 115-16 and accompanying text (describing 
reasonable belief standard of Florida custodial interference 
statute).

The application of the defense to criminal, as opposed to civil, 
contempt is a somewhat easier fit.  The purpose of criminal 
contempt is punishment.  The philosophy that created the defense 
in the criminal arena -- that punishment 
is only for the culpable and that the law is willing to admit of 
certain circumstances under which the breaking of the law does 
not establish culpability-- applies with equal force to the 
"crime" of contempt.  Absent a total =rejection of the necessity 
defense in criminal proceedings generally, there would appear to 
be no rational argument against its use by custodial parents who 
are charged with criminal contempt.

As has been explained, however, courts often have discretion as 
to which type of contempt order they wish to impose. n121 Assuming 
that procedural safeguards attendant to a criminal contempt 
charge may sway courts to use civil contempt when they can, n122 
or assuming that in some instances the discretion of the court 
may be constrained, the issue then becomes whether necessity 
ought to be a defense to a charge of civil contempt as well.  The 
answer is yes.  The preceding discussion of the difficulties of 
proving child sexual abuse in court and the problems created by 
the use of civil contempt cries out for some kind of reform. n123 
In addition to the general notion that "something" has to be 
done, there are several reasons why the necessity defense is 
appropriate.

n121.  See R. GOLDFARB, supra note 42, at 50-52 (stating that
although civil and criminal contempt were born from different
histories and reasons, they are
considered but nuances of each other and are often applied 
interchangeably).  In fact, a reviewing court often has difficulty 
determining whether a particular                           
contempt order is civil or criminal.  See Kutner, Contempt Power: 
The Black Robe-- A Proposal for Due Process, 39 TENN. L. REV. 1, 
8 (1971).

n122.  See Note, supra note 40, at 106-07 (suggesting that civil 
and criminal contempt should be merged so that civil contemnor 
given "the protection to which he would otherwise be entitled were 
he guilty of irremedial misconduct").

n123.  See supra notes 12-39 and accompanying text describing 
difficulties of proving sexual abuse of children).  A more radical 
possibility is that civil contempt in these kinds of custodial 
situations simply be abolished.  This Article does not go so far, 
however.  It assumes that civil contempt remains as an option for 
enforcement of custody and visitation orders.

First, the necessity defense has never been restricted to the 
criminal side of the law; it enjoys a long history in the civil 
area as well. n124 The civil action, in which one party seeks a 
remedy from another, is akin to civil contempt, in which one 
party seeks to enforce her rights against another.  If the civil 
law is willing to recognize, in appropriate  cases, 
that necessity may protect a defendant from liability, it 
effectively fails to enforce another's right to recover for a 
wrong committed against her. n125 Thus,the law now recognizes 
necessity as a defense in civil, as well as criminal, matters, 
and does not restrict the defense to those situations in which 
the defendant attempts to avoid only punishment.

n124.  See The Case of the King's Prerogative in Saltpetre, 12 Co. Rep. 17,
77 Eng. Rep.  1294 (1607); Surocco v. Geary, 3 Cal. 69 (Cal. 
1853). = n125.  Modern cases of civil employment discrimination 
rely on a form of the necessity defense.  This "business 
necessity" defense requires that: (1) the employment or hiring 
practice is necessary to the safe and efficient operation of the 
business; (2) the practice carries out the alleged business 
purpose; and (3) no less discriminatory alternatives exist.  See 
Robinson v. Lorillard Corp.,444 F.2d 791, 798 (4th Cir. 1971); 
see also Contreras v. Los Angeles, 656 F.2d 1267, 1280 (9th Cir. 
1981) (explaining standards used to show business 
necessity defense); Shannon v. Pay 'N Save Corp., 104 Wash. 2d 
722, 731, 709 P.2d 799, 806(1985) (discussing business necessity 
defense).

Second, the issue of the actor's state of mind is not foreign to 
the law of civil contempt.  As has been shown, the law ultimately 
affords respect and legal significance to an individual's belief 
when it releases her from incarceration upon a finding that 
further imprisonment will not coerce, it will only punish. n126 
It does not seem incongruous for a legal system that is willing 
to allow a good faith belief to act as a key to the prison to 
allow that same belief to prevent the prison door from closing in 
the first instance. 
n126.  See supra notes 45-52 and accompanying text (discussing 
psychological element of civil contempt).

Third, and perhaps the most cogent of all arguments, is Goldfarb's
point that the labeling of contempt as "civil" or "criminal" is a
legal fiction. n127 He argues that we must view civil contempt for
what it is -- a 
serious deprivation of liberty which ought to be afforded 
whatever procedural safeguards this legal system has instituted 
for those it seeks to incarcerate.  In other words, civil 
contempt is in reality no different from criminal contempt in its 
aim, which is punishment through incarceration.  Certainly a 
review of the contempt cases in any jurisdiction would lead one 
to believe that the courts have eroded the differences between 
the two, jailing persons for indefinite sentences in criminal 
contempt proceedings and for definite sentences in cases in which 
the stated reason is to coerce.  If we view civil contempt 
through Goldfarb's prism,then, there is nothing really civil 
about it; it is really criminal in nature and therefore ought be 
treated as such for all purposes, including the applicability of 
the necessity defense. n128

n127.  R. GOLDFARB, supra note 42, at 48.

n128.  See id. at 292-94 (suggesting that imprisonment in civil 
contempt situations is departure from Anglo-American law and is 
in fact often used for punitive purposes).

The District of Columbia Court of Appeals did in fact review, and 
reject, the necessity defense raised by Morgan in her civil 
contempt proceeding. n129 It admitted the 
applicability of the defense to criminal acts, including the 
proviso that proof of actual harm is not required; rather, a 
reasonable belief that harm was about to occur is sufficient.  
However, the court rejected the defense solely because Morgan 
sought to raise it in a contempt proceeding rather than as a 
defense to a criminal act. n130 The entire reasoning of the court 
on this point is as follows:

n129.  Morgan v. Foretich, 546 A.2d 407, 411 (D.C.  1988), cert. 
denied, 109 S. Ct. 790 (1989).

n130.  Id. The court explained that the necessity defense does 
not exonerate one who has the opportunity to resort to a 
reasonable legal alternative to violating the law.  Id. (quoting 
Griffin v. United States, 447 A.2d 776, 778 (D.C.  1982), cert. 
denied, 461 U.S. 907 (1983)).

In any event, the situation here is far different from that 
facing one who violates a criminal law.  Here there was a 
specific court order, requiring specific conduct tailored to a 
specific fact situation -- an order which we on                           
appeal had refused to stay.  Civil contempt could become 
meaningless if a lawful defense could rest on the ground that a 
party took a different view, however reasonable, of the potential 
harm in compliance. n131 = n131.  Id. at 411.

The court's reasoning is as dubious as it is sparse.  First, 
there is nothing in the District of Columbia custodial 
interference statute that excludes persons having custody orders 
from its reach. n132 Thus, Morgan's actions could be construed as 
violating both the statutory law and the court order.  In the 
former, it is clear that the appellate court would entertain the 
defense because it is specifically enunciated in the statute.  In 
the latter, whether civil or criminal contempt, the court would 
refuse to do so.  It is illogical to picture two simultaneous 
proceedings brought on by the same conduct, against the same 
person, consisting of the same evidence, and in the case of 
criminal contempt, with the same object -- to punish the 
criminal/contemnor -- and yet to have the court accept the defense 
in one but not the other proceeding.  One is left to wonder, 
then, in what way the violation of a court order is "far 
different from that facing one who violates the criminal law." 
n133

n132.  See supra notes 110-14 and accompanying text (providing 
text of District of Columbia custodial interference statute). 
n133.  Morgan, 546 A.2d at 411.

Second, it does not automatically follow that application of the 
defense is tantamount to rendering civil contempt meaningless.  
An individual contemnor =seeking to assert the defense must still 
meet all of the elements.  If the road to meaninglessness was as 
short as the court fears it to be, our criminal laws would have 
ceased to exist immediately upon the appearance of the necessity 
defense in our jurisprudence.  The admission of an 
exception, or a defense, does not render the entire structure 
meaningless; it simply recognizes that in some instances, the 
general rule -- that one must obey court orders --should not be 
applied.

In addition, the same argument can be raised about the civil 
contempt doctrine that requires release of the contemnor upon a 
showing that further confinement will not persuade her to obey 
the order.  As previously stated, this doctrine means that 
recalcitrance results in imprisonment, but real recalcitrance 
then results in release.  The logic of such a doctrine would seem 
even harder for courts to accept than the necessity defense, and 
therein may lie an insight into the law's acceptance.  It is not 
logic that fuels the doctrine, but the reality that for some 
individuals in some situations, the standard procedure -- 
continued imprisonment --does not produce the desired result. 
n134 In those situations, the law is willing to recognize that 
the motivation of
the contemnor is a relevant and important factor.  The same is 
true of the necessity defense.  Some individuals in some 
situations -- like that of Morgan -- will believe that they 
cannot act in accordance with the court order.  The =application 
of the necessity defense to a contemnor's situation provides a 
framework within which the court can then properly consider the 
contemnor's motivation for her failure to abide its terms.

n134.  See supra note 65 (citing cases in which court released persons when
imprisonment lacked desired effect of coercion).

Finally, if there is one clear difference expressed by the court 
in Morgan between the contemnor and the criminal, it is that the 
contemnor has violated an order that is specific to her, whereas 
the criminal has broken a law of more general application.  It is 
not evident why the court regards this difference as dispositive.  
Perhaps the court sees the process by which a court order comes 
into existence as one in which the court has already considered 
the factors, including the personal feelings and motivations of 
the individual, that the contemnor now seeks to raise through the 
necessity defense.  The legislative process, by contrast, does 
not tailor its product to any one individual's situation.  While 
generally true, the specificity of the court order will apply to 
a situation that existed at the time the order was entered.  The 
situation at the time the order was violated may be, and often is, 
quite different.                            
Therefore, the specific tailoring may be for a reality that no 
longer exists, and which a new reality has now replaced.

Even assuming, however, that the violation of the order followed 
on the heels=of its entry, or more likely, of a court's refusal 
to modify an existing order, the court's reality is 
obviously different from that of the contemnor.  The court's 
perspective, because it is determined by legal rules 
and procedures and the problems inherent in proving child sexual 
abuse, is a limited perspective.  The reality of the contemnor, 
however, is not constrained by notions of what is legally 
admissible, or of whether or not a child stands up under cross-
examination on the witness stand; the contemnor's perspective is 
built upon additional facts which the legal system has determined 
to be of no legal significance.  Accordingly, when the Morgan 
court refers to a court order being tailored to a specific 
situation, it is a situation that the court has defined, not one 
as seen by the contemnor.  One may wonder, then, why specificity, 
unfettered to the reality defined by the contemnor, should make a 
court order somehow more inviolate than a criminal statute.  And 
if no more sanctity should attach to court orders than to 
criminal laws, the rationale for holding the necessity defense 
inapplicable in contempt proceedings crumbles.

VII.  AFTER A SUCCESSFUL NECESSITY DEFENSE

The focus of this Article has been to argue on behalf of the 
availability of the necessity defense in civil contempt cases 
arising from child sexual abuse allegations.  However, a fair 
question is what happens if the defense is successfully 
asserted.  A potential contemnor may use the defense to avoid 
incarceration and all of the attendant harms of jailing a 
custodial parent, and yet the original problem remains.  That is, 
what, if anything further, should courts do to deal with the 
problem that continues to haunt: the custodial parent who, 
through a now judicially-sanctioned good faith belief of abuse by 
the other parent, refuses visitation rights.

Supervised visitation with the noncustodial parent is one 
solution that is often recommended, whether for an interim period 
or for the remainder of the child's minority.  It may be a viable 
answer assuming that the custodial parent will agree to it, that 
the child has not in fact been abused, and that the noncustodial 
parent is willing to accept such limitations.  On the other hand, 
it may be a solution that is unsatisfactory for all concerned.  
The custodial parent will not admit to any positive value to be 
had in a continued relationship between the abuser and the victim.  
The child, if in fact a victim,is forced into intolerable 
continued contact with his or her rapist.  If the child is not, 
in fact a victim, there remains the intrusion of a third party 
into the time spent between parent and child, and perhaps for the 
noncustodial parent, the sense of stigma that follows.  While it 
could be said that 
supervised visitation is a viable solution  despite its 
problems, there remains the question of who will provide the 
supervision and who will pay for it.

A second possibility is that once the custodial parent has proven 
her good faith belief, the child could be removed from the 
custody of both parents and placed in foster care, with 
supervised access to both parents until such time as the question 
of abuse is decided.  This option has the advantage of allowing 
the child to maintain contact with the parents while presumably 
ensuring his or her own safety. n135 It may also have the 
incidental advantage of testing out accusations of brainwashing 
of the child by the custodial parent.  The resource problem is 
even greater here, however.  The cost of supervision doubles, 
there being two parents to observe during visitation, in addition 
to the cost of the foster care itself.  Assuming this to be an 
interim rather than permanent arrangement, there is also the cost 
of trained professionals to examine the child and the parents and 
to provide whatever counseling may be needed.  Perhaps in even 
the most skilled of hands, the question of abuse may never be 
answered, raising the issue of whether long-term foster care is 
an acceptable resolution.

n135.  Placing the child in foster care is its own trauma, 
however.  See Besharov, supra note 37, at 560 (describing some 
problems inherent in foster 
care system).

A third, and obvious, solution is to "fix" the legal system that 
makes allegations of child abuse so difficult to prove, and thus 
contributes to the problem of custodial parents whose shattered 
faith in the legal system causes them to hide their children or 
to flee with them.  The tension between attempts to "fix it" and 
the constitutional rights of defendants n136 portend at best a 
slow, and at worst, an impossible process.  Assuming that one 
could substantially improve the legal system without running 
afoul of the Constitution, there is no doubt that in some cases, 
custodial parents might persuade themselves that a court can and 
would decide the matter fairly. Unfortunately, the reformation of 
the legal system alone will not solve the problem.  As previously 
discussed, failings in the society as a whole would remain.  Pre-
verbal children with no physical evidence of abuse, for example, 
will probably not stand any better chance in an improved legal 
system than in the present one.

n136.  See supra note 30 and accompanying text.

The fourth alternative is for courts to recognize the limits of 
the law in resolving this conflict.  Whether for lack of 
resources, or for other reasons, the legal system may have no 
answer that will satisfy the needs of all of the                            
parties concerned.  If this is the case, the court must seek to 
do the best it can, never forgetting that its focus 
should be on how best to promote the child's interests.  
Accordingly, the best in a myriad of less than optimal solutions 
may be for the court simply to allow the custodial parent to 
determine the extent of the relationship that will exist between 
the child and the noncustodial parent.

This suggestion does not minimize the effect on the noncustodial 
parent, for whom a court's refusal to interfere with the 
custodial parent's decision may mean a loss of contact with the 
child.  Given the choices available, however, it can be defended 
for a variety of reasons.  First, the child's best interest is 
served by allowing a continuation of the relationship between the 
child and the custodial parent, that is, the parent caring for 
the child on a daily basis. The interruption of such a bond, not 
to mention the actual physical displacement involved in placing a 
child in foster care, for example, is a source of great trauma to 
the child. n137 Secondly, to refuse to second-guess the custodial 
parent's decision in this matter underscores the court's initial 
determination regarding which parent would best serve the child's 
interests.  The court (or sometimes the parties themselves) may 
have already made a decision that the child would be better off 
with one parent than the other, and that the custodial parent 
possesses all of the faculties necessary to act in the child's 
best interest.  Therefore, in a difficult situation such as this, 
a court could stand behind its initial determination and place its 
faith in the custodial parent. n138 Third, such an idea is not 
entirely new.  Though still controversial, and admittedly never 
really accepted in the American legal system, Goldstein, Freud, 
and Solnit, in Beyond the Best Interest of the Child, make a 
similar argument.

n137.  J. GOLDSTEIN, A. FREUD, & A. SOLNIT, BEYOND THE BEST 
INTERESTS OF THE CHILD 109 (2d ed. 1979).  The importance of 
continuity of the relationship between the custodial caregiver 
and the child is beginning to be recognized in the doctrine of the 
primary caretaker.  In custody determinations, this is a 
presumption that the child's welfare will best be served by 
placing her in the custody of the parent who has been primarily 
responsible for daily care of the child.  Garska v. McCoy, 167 W. 
Va. 59, 278 S.E.2d 357 (1981) (originating presumption); see H. 
CLARK, supra note 9, at 800.  But see LOYOLA ASSOCIATION OF WOMEN 
LAW STUDENTS, SEEKING SOLOMON'S WISDOM 5-6 (1984) (arguing that 
in spite of Goldstein's theory, many professionals in child 
welfare feel strongly that the more contact the child has with 
both parents the better the child will adjust to her new life).

n138.  Under Japanese law, to be a custodial parent is to decide 
what, if any, contact the child will have with the noncustodial 
parent.  See J. GOLDSTEIN, A. FREUD, & A. SOLNIT, supra note 137, 
at 132. 

Once it is determined who will be the custodial parent, it is 
that parent, not the court, who must decide under what conditions 
he or she wishes to raise the child.  Thus, the noncustodial 
parent should have no legally enforceable right to visit the 
child, and the custodial parent should have the right to decide 
whether it is desirable for the child to have such a visit.  What 
we have said is  designed to protect the security of an 
ongoing relationship -- that between the child and the 
noncustodial parent, which the adults involved have jeopardized.  
It leaves to them what only they can ultimately resolve. n139 
n139.  Id. at 38.

This view on the subject is different in one respect from the 
situation at issue here.  Goldstein, Freud, and Solnit recommend 
that visitation be totally removed from the jurisdiction of the 
court except peripherally in that court's determination of who 
should be the custodial parent.  This Article, however, does not 
go that far.  The rights of the noncustodial parent are protected 
in some measure until it appears that further protection of those 
rights will harm the child.  Thus, the noncustodial parent in 
most situations may continue to look to the courts for 
enforcement of his or her rights to visit with the child.Only in 
a situation of such irremediable conflict and one in which other 
alternatives prove harmful should the court choose the least 
detrimental one for the child, permitting the custodial parent to 
use her discretion to discontinue visits.

CONCLUSION

The problem of what courts should do with recalcitrant custodial 
parents is a problem with no easy solutions.  The inquiry should 
not ignore that this is one small piece of the larger challenge 
facing the legal system, that is, what it can or ought to do in 
dealing with the hideous problem of sexual abuse of children.  No 
ultimate solution exists, nor is one likely to.  If nothing else, 
however, the legal system ought not be paralyzed by the enormity 
of the problem;rather, it should make whatever inroads are 
possible.  It also ought not fool itself into thinking that 
solutions have no costs, or that balancing rights and interests 
of family members is a painless activity.  The recognition of 
necessity as a defense to contempt charges is one small inroad.  
In a myriad of tough choices, courts need to be counted on to 
provide shelter and protection for child victims and to choose 
the course that is truly in the best interests of children.