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Hilary's Trial.

Hilary's Trial. Jonathan Groner. Simon & Schuster, 21.45. Like everybody else in Washington, I knew something about the custody dispute over Hilary Foretich before reading Hilary's Trial. Now I know a lot.

Hilary was born a few months after Elizabeth Morgan and Eric Foretich were married and a few days after Elizabeth moved out of their house. The estranged (and soon divorced) couple began sparring over Hilary; Elizabeth got custody. But Eric got substantial visitation rights, which caused the subsequent knock-down, drag-out fight. Elizabeth went to great lengths to stop Eric from seeing Hilary, because she came to believe he was sexually abusing his daughter.

For seven years, various courts dealt with the case. Groner uses his facility with the law-he is a lawyer-to defuse some of the legal issues that the public found so explosive. For example, in August 1987 the court made a key decision that propelled Hilary into hiding and Elizabeth into jail. The court denied Elizabeth's motion to stop an impending overnight visitation, finding that the evidence of past sexual abuse was "in equipoise." Groner quotes one outraged reaction to this finding: "How would you like equipoise for your daughter? Let's say she brings a note home from girl scouts. Dear mommy, can I go on a campout with the girl scouts? It will be supervised by people who may rape us. But they may not rape us. The chances are about 50-50.' Would you send your daughter on that camping trip with the equipoise?"

Groner notes that the court's decision was "technically correct," in that Elizabeth had to prove abuse had occurred to stop the visits, and if the evidence was evenly balanced, she had not met her burden of proof. But the court also relied on the fact that the visits would effectively be supervised. And that, Groner concludes, was the just result under the circumstances: When there is some evidence of sexual abuse but not enough to legally condemn the father, you nonetheless protect the child as much as possible by allowing only supervised visitations.

If Hilary got justice, it was a fluke. Another court applying only the technically correct burden of proof would have to allow the alleged molester unsupervised access to the child. This is a flaw that should be fixed to accommodate both the difficulties of proving child abuse and the possibility of unfounded accusations. It can be fixed, too, by borrowing from another area of the law. For example, discrimination is also difficult to prove, so in many cases based on Title VII, the federal statute prohibiting employment discrimination, the burden of proof has evolved accordingly: The accusing party must present some evidence of discrimination, but once a prima facie case is made (which requires less evidence than the "preponderance" standard), the burden shifts to the accused to prove discrimination did not occur.

Hilary's story is bizarre and fascinating, but the enduring value of Hilary's Trial is its dissection of the legal system. There is, of course, no magical solution to the bitterness of divorce and the horror of child sexual abuse. But we could at least fix some of the obvious trouble spots, such as the burden of proof.
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Article Details
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Author:Riedy, Marian K.
Publication:Washington Monthly
Article Type:Book Review
Date:Apr 1, 1991
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