A bad law that will hurt good fathers

Leving is a family-law attorney. Sacks writes on the issues of men’s and fathers’ rights.

False accusations of violence or abuse are endemic in family-law cases. The California Senate just unanimously passed a misguided bill that will make the problem worse by easing the way for spurious spousal-rape allegations to be used against fathers.

Victims of spousal rape deserve protection, and current California law provides it. In order for the state to prosecute a spousal-rape charge, the accuser needs only to have mentioned the violation within a year of its occurrence to any of a wide variety of medical, law-enforcement, clerical, legal or psychological personnel, or there must be corroborating, independent, court-admissible evidence.

Senate Bill 1402, sponsored by Senator Sheila Kuehl, D-Los Angeles, eliminates the distinction between spousal rape and other rapes, thus allowing for spousal-rape prosecutions six years later, even if there was no mention or independent evidence of the crime in previous years.

In family-law proceedings, there are a multitude of important and emotionally charged issues that are often contested and re-contested over many years. False accusations often allow accusers to gain leverage in these proceedings. The Senate Judiciary Committee specifically cited this problem when it crafted the spousal-rape evidence requirement in 1979.

In a widely reported Michigan case from the late 1980s, for example, William Hetherington was convicted of spousal rape and incarcerated in the middle of contentious divorce proceedings in which he was likely to win custody of his children. Hetherington couldn’t afford legal representation because the family-law court froze his assets, as is common. Yet, the criminal court refused to provide him legal representation as an indigent because he was employed.

After being convicted, Hetherington was unable to raise funds for an appeal, since his ex-wife won his home and all his assets (as well as custody of his three children). Hetherington remains in jail today in spite of evidence that some believe casts doubt on the conviction.

The accused need not be convicted to suffer egregious harm. The cost of criminal defense is often ruinous, and the emotional toll can be worse. The mere threat of allegations of violence or abuse is often used to extort post-divorce concessions from fathers. S.B. 1402 won’t help victimized women—it will only harm decent fathers.