Foretich v. Capital Cities/Abc, Inc.

37 F.3d 1541 (1994)

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Nature of the Case

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Facts

Hilary Foretich's parents, Dr.Elizabeth Morgan and Dr.Eric A. Foretich were separated by the time she was born. By the time she learned to walk, the parents were divorced and involved in what would become one of the most notorious child-custody battles in American history. The Court awarded temporary custody to her mother, subject to scheduled visitations by the child's father. The mother came to believe that Hilary was being sexually abused during visitations with her father and the paternal grandparents, Ps. She sought a temporary suspension of the visitations, but the D.C. Superior Court denied her request. In February 1986, the mother refused to permit any further visits. A flurry of motions and hearings ensued, and the mother was held in contempt and briefly incarcerated. She still refused to turn the child over to her alleged abusers and, following another series of motions, hearings, contempt orders, and appeals, she was again jailed for contempt in February 1987. Supervised weekend visitations then resumed for several months. The mother sought an end to the father's visitation rights. The mother claimed that Hilary had been physically and sexually abused by Eric and Ps and that they had threatened to kill or injure Hilary if she told anyone about the abuse. The complaint accused the girl's grandfather, Vincent Foretich, of (1) manipulating Hilary's genitalia; (2) inserting various foreign objects into her vagina; (3) orally sodomizing her; (4) anally sodomizing her; and (5) masturbating himself and ejaculating into her face and hair. The complaint accused Doris Foretich of 'various acts of sexual abuse and assault and battery upon her granddaughter, specifically including but not limited to acts in which she inserted objects into her vagina. The father and Ps filed counterclaims alleging defamation. The jury returned a verdict against the mother on the abuse claims and against the Foretiches on the defamation claims. Both sides appealed, and the court reversed and remanded in part. The mother then hid Hilary. She was incarcerated for civil contempt beginning in August 1987 and continuing for twenty-five months. The news media went crazy. Each parent hired a public relations agent and commissioned a toll-free '800' number. Hundreds of newspaper and magazine articles were published about virtually every aspect of the controversy. Everybody wanted some of the action. In September 1989 Congress enacted and President Bush signed into law the District of Columbia Civil Contempt Imprisonment Limitation Act of 1989, Pub. L. No. 101-97, 103 Stat. 633 (codified at D.C. Code §§ 11-721(f), 11-741(b), 11-944(b)). The Act stated that no person could be imprisoned for civil contempt by the D.C. Superior Court for more than twelve months in connection with a child custody case. It also specified the circumstances under which a criminal contempt conviction could be imposed in a child-custody dispute, and provided for expedited appeals for those incarcerated for contempt in such cases. In 1990, a private investigator found Hilary living with her maternal grandparents in Christchurch, New Zealand. D published a docudrama where the child was shown with Ps, which then cuts to the mother who says, “[Elizabeth’s] being kind to her abusers so she won’t be hurt again.” Ps sued Ds for defamation. No one disputes that the use of abusers in the plural was inadvertent. The issue at trial was whether Ps were public figures.