Removing Legal Incentives To Lie

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Cosby is the latest cultural icon to face highly publicized and
unproven allegations
of sexual misconduct

police charges have not even been filed. Whatever may be proven
true of Cosby’s conduct, the emerging scandal once again raises
questions about how society should deal with accusations.

can be done about the growing perception that false accusations
– especially by women – are commonplace in matters of divorce,
child support, and in sexual abuse cases that devolve into little
more than competing stories?

false accusations that grab the spotlight are usually connected
to sexual abuse and celebrities. For example, one headline last
week read, “H.S.
Coach Awarded $4.5 Million for False Accusation in Sex Case: No
Charges Were Ever Filed Against Patrick Gillan.”

Gillan’s mug shot was displayed on TV and in several newspapers,
along with the accusation. Another
stated, “Woman Who Accused Celine Dion’s Husband of
Rape Gets Prison.” The article went on to explain, “A woman who
tried to extort millions of dollars…has been sentenced to up to
five years in prison.”

the false accusations that impact most people are more commonplace.
They often occur in the process of divorce, in battles over custody
and child support. For years, advocates of fathers’ rights have
accused the family courts of being “anti-male” and of rubber-stamping
women’s claims. And, judging by increasing interest in concepts
like shared
, their voices are being heard.

the sensational headlines along with men’s disillusionment are creating
something of a backlash against women who make any allegations at
all – true or false. The backlash should be directed against the
legal system itself for offering incentives to lie.

fact that people lie – not just women, but people – has been acknowledged
for many centuries. It is no coincidence that the Ninth
is “Thou shalt not bear false witness against thy
neighbor”; the scripture is widely interpreted to address sworn
testimony in court.

nature has not changed, and a responsible legal system must promote
honesty. For example, the system can require an oath in criminal
court and enforce penalties for perjury. To be effective, these
safeguards have to be enforced equally on both sexes and all races.
Today, the enforcement of such safeguards has become all the more
important for women if they wish for their legitimate accusations
to be taken seriously in the future.

ancient Hebrews employed a rather severe standard. Those who gave
false testimony before a court were liable for whatever punishment
would have been inflicted on the accused, including death.

false accusations can be minimized without draconian measures. The
simplest solution is to remove from the legal system incentives
to lie. In many cases, removing the incentive will eliminate sensational
trials with murky “he said/she said” scenarios.

both the incentive and the lie are clear-cut. For example, consider
paternity claims that are proven false. Such claims almost never
result in legal sanctions against a mother who has knowingly lied.
Indeed, she may continue to be rewarded with child support after
the falsehood is revealed. This is because many states require “named”
fathers to pay child support even when DNA tests prove they have
no biological relationship to the children.

situation may be changing in the near future.

reported on a precedent-setting situation in California
where a June court decision and a law that became active on Jan.
1 now allow existing child support obligations to be overturned
by men who can prove they are not biological fathers.

California attorney, Marc Angelucci, is pressing to establish another
precedent. He has filed in civil court for restitution from the
mother and Los Angeles county officials for child support his client
was forced to pay for a child that was not his. His client is Taron
James, founder of the organization Veterans
Against Paternity Fraud
; the next court date is Jan. 25.

is an ideal area for the courts to eliminate an incentive to lie
by removing the reward for doing so and enforcing penalties against
fraud. The media-grabbing cases may spotlight false accusations
as a social problem, but it is in the day-to-day grind of administering
law that the solution will emerge.

solutions for removing the incentive to lie exist. To list just
two and all too briefly:

  • Require
    criminal charges, like sexual abuse, to be proven beyond a reasonable
    doubt in criminal court before they can proceed to the far looser
    standards of evidence (and honesty) within civil courts. This
    would remove the financial incentive of a civil court award.

  • Stop
    applying anti-SLAPP
    laws to proven cases of false accusations. Anti-SLAPP laws were
    passed to prevent large corporations from maliciously suing
    and, thus, silencing, private citizens and grassroots activists.
    It prohibits such lawsuits.

some areas, like Massachusetts,
the law has been applied to immunize social workers and mothers
who seek custody from the consequences of misconduct. This turns
the intent of anti-SLAPP law inside out. It is literally being used
by those in power against “the man in the street.”

juicy accusations flood the news, the weary skepticism with which
we view both the accused and the accusers will probably increase.
Cynicism is an easy non-solution. Those who wish to resolve the
problem of false accusations will roll up their sleeves and start
pushing back the legal incentives that reward lies and cheapen justice.

28, 2005

McElroy [send her mail]
is the editor of
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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