Hilary’s trial; On trial

HILARY’S TRIAL: THE ELIZABETH MORGAN CASE. A CHILD’S ORDEAL IN AMERICA’S LEGAL SYSTEM by Jonathan Groner. American Lawyer Books/ Simon & Schuster, 1991.

ON TRIAL: AMERICA’S COURTS AND THEIR TREATMENT OF SEXUALLY ABUSED CHILDREN by Billie Wright Dziech and Charles B. Schudson. Beacon Press, 1991, paper.

This is a fairy tale in which all the grownups are monsters and the prince never comes. The facts of the case have become part of the folklore of the age, well-known to anyone even minimally familiar with People magazine.

Two highly educated, strong-willed, obsessive, totally mismatched, and none-too-stable people — plastic surgeon Elizabeth Morgan and oral surgeon Eric Foretich — beget a daughter. They separate. The mother accuses the father of sexually abusing the child. A panoply of judges, lawyers, psychiatrists and miscellaneous experts of varying backgrounds, training, and proclivities become involved. None can agree on what really happened. The child’s life becomes centered on psychiatric evaluations, stressful visitations, and anatomically correct dolls.

The mother goes to jail rather than comply with judicially mandated visits between child and father. In the ultimate contempt of court, she arranges for the child to disappear. She is attractive. Harvard-educated, and media-savvy. She wins the public relations battle. Congress passes a special act to spring her from the slammer. Three years later, private detectives hired by the father locate the child. She is living in New Zealand, in the care of her maternal grandparents — two psychologists, the father a former testing expert for the C.I.A. — whose own mental health leaves much to be desired.

What makes Hilary’s Trial interesting is that, to a large extent, it can be read as a kind of exoneration of the maligned father—or at least an acknowledgment that there may be some justice on his side. The author, Jonathan Groner, is a former federal prosecutor who was drawn to the material out of professional curiosity rather than personal experience. He admits he began his book with a “conventional” bias toward Morgan, but says “stubborn facts” caused him to come to a different conclusion about “the course that events probably took” (emphasis mine). He, like virtually all the players in the drama other than the principals, admits to no certainty.

In a careful, thorough, and — in the best sense — lawyerlike manner, Groner tries to present a balanced picture of each event that contributed to the escalating horror story:

• Morgan noticing that Hilary’s thighs are red after the child has returned from an early visit with Foretich and his parents (before suspicion of abuse had become an issue) and pointing this out to her father. His instant response: “This child has been molested. Somebody, Eric or Vincent (Eric’s father), has put his penis in between her thighs and rubbed it.” Morgan takes Hilary to the hospital emergency room. The diagnosis: diaper rash.

• Morgan photographing Hilary putting crayons in her vagina to illustrate aberrant behavior allegedly provoked by Foretich. (Concerned that the film was misloaded, Morgan drove to her office to get another camera and then asked the child to reinsert the crayons for a second photo session.) Several doctors who subsequently noted a thickening of Hilary’s vaginal lining — and not all did — said it could as well have been caused by crayons as a penis.

• Foretich’s daughter from a previous marriage also alleging sexual abuse by her father, which she then denies; and her paternal grandmother explaining that the five year old could have learned about the sexual acts she ascribed to her father from a babysitter who played “doctor” with her and told her in detail what she did with her boyfriend.

Each allegation by Morgan is countered by a cross-allegation by Foretich; each finding of abuse by a psychologist or physician is countered by an opposing conclusion by another expert known for a different take on the subject; each instance of abuse described or alluded to by Hilary (as reported, for the most part, by Morgan) is countered by statements the child allegedly made to other people to the effect that she was lying about her father to please her mother.

Groner himself — so assiduous in pointing out preexisting bias in others — could be seen to have a bias of his own: the Foretichs confided in him fully; the Morgans shut him out. The reader, like all those charged with making judgments in the case, must come to her own conclusion about credibility.

Groner’s claim of objectivity rings true to me, despite what some may find an overly sympathetic portrayal of Foretich’s parents. He has pulled together a raft of relevant information and presented it intelligently and, in my opinion, fairly. His grant of a certain validity to Foretich’s point of view is, at the very least, a corrective to Morgan’s own book on the case. Custody — the two books should be read in tandem by all interested both in this particular case and in the larger issue of the sexual abuse of children.

Another piece of required reading on this topic is On Trial, by Billie Wright Dziech and Wisconsin Circuit Court Judge Charles B. Schudson. This book looks at the way courts have historically treated claims of sexual abuse of children, up to and including the Morgan-Foretich affair, and concludes that in most cases the legal system inflicts its own form of abuse on children who may have already suffered unspeakable crimes — crudely and cruelly subjecting them to the mercilous rules of an adversarial system designed for adults.

Humanely, the authors argue that new rules and procedures must be developed. Hearsay evidence, videotaped interviews, and testimony brought into the courtoroom via closed-circuit TV should be admissable to protect children from having to confront their alleged abusers. If young children must appear in open court, they should be allowed to testify while sitting on the lap of a trusted person. And, perhaps most important, all those involved in such cases — lawyers, judges, psychologists, social workers — should be attuned to the unique ways in which children at different stages of development perceive the world and express those perceptions. 

Deborah Solomon has worked as an actress, attorney, newspaper editor, science writer cmd documentary film producer. She lives in Newbury, Vermont where she currently works as a freelance writer.