Thursday, April 5, 2012

Oregon House Passes Bill Making False Allegations of Child Abuse a Crime

May 19th, 2011 by Robert Franklin, Esq.
The Oregon House of Representatives has passed House Bill 2183 by a 37-23 margin.  The bill would make accusations of child abuse that are known to be false when made a crime punishable by a fine of up to $720.  The bill now moves to the Senate for consideration.  Read about it here (Statesman Journal, 5/4/11).
Proponents said the bill is intended to keep people from maliciously filing false reports in the midst of a divorce, custody fight or other domestic conflict.
“Accusing somebody of something as serious as child abuse tarnishes their reputation in a way that is unique,” said Rep. Wally Hicks, R-Grants Pass.
Legislators opposed to the measure expressed concern that it would have a chilling effect, causing people who suspect abuse but aren’t certain to hesitate before acting.
That opposition is answered obviously enough by the requirement that the reporter know the claim to be false.  That requirement simultaneously gives the bill’s legitimate targets – false accusers in custody cases – a fairly easy way to avoid conviction.  After all, it should be an easy matter for a mother to say “I see signs of child abuse” as opposed to “He’s abusing the child.”
Since the law is aimed at parents who try to gain an advantage in custody cases with false claims of child abuse, fines by criminal courts won’t necessarily affect custody decisions at all.  The whole problem with these claims of abuse in custody cases is that family courts fail to require actual proof of them before making their rulings.  So the most threadbare claim can effectively separate a father from his child, potentially for life.
If family courts required real, verifiable evidence of abuse instead of relying on naked allegations, bills like HB 2183 would be unnecessary.  If it passes, what effect will it have on family courts that don’t show much interest in the truth or falsity of abuse claims now?
I suppose the answer to that question is “some.”  Surely if a criminal court convicts a  mother of a false abuse claim, the family court would take that into consideration in deciding custody.  But if it had already made temporary orders keeping the father away from the child, might it also not ignore the conviction and simply keep the child with the mother?
That pretty much points up the problem with trying to get criminal law and criminal courts to do what family courts should do as a matter of course.  When allegations of abuse are made in the course of a custody case, family courts should treat it just as they would any other matter to be proved.  They should require objective, verifiable evidence from the accuser and give the accused a full opportunity to answer and assert his innocence.
The fact that family courts not only act on unproven allegations and effectively place the burden of proof on those accused to prove their innocence is more than just a procedural wrong.  It’s a tried-and-true method of cutting fathers off from their children and children off from their fathers.
That family courts don’t know not to do that already won’t, I predict, be changed by a law making false allegations a crime.  Family courts have all the power they need to deal with false swearers right now.  If they were going to behave sensibly, they’d be doing so.
Still, the bill, if passed by the Senate and signed into law, would certainly be better than nothing.  For one thing, it would let a different court – a non-family court – adjudicate the matter.  That alone would make the law worthwhile.
But into the bargain, HB 2183 would suggest to family courts that the State of Oregon tolerates false swearing less well than they do.  It might actually spur change on the part of family law judges.  The law’s rebuke to family courts is pretty thinly veiled.  It fairly shouts “you’re not doing your job, so we’ll try to do it for you.”
So by all means the Senate should pass this bill.  It may help to quell false allegations and it may help convince family law judges to do what they should have been doing all along.
But I won’t hold my breath.  My guess is that this is merely a first step on the road to still greater efforts at dealing with the epidemic of false allegations of abuse used to gain an advantage in child custody matters.