Unequal Protection: Women, Children, and the Elderly in Court. - book reviews

Washington Monthly, May, 1991 by Lois Schiffer

Unequal Protection: Women, Children, and the Elderly in Court.

Since the advent of "People's Court," "Divorce Court," and the like, television has provided Americans with a somewhat satisfying image of justice in local trial courts: common-sensical and usually fair. But after 16 years as a trial court judge in Philadelphia, Forer sees institutional justice in a slightly more cynical light. In this book, she reflects on those of her cases in which the law, correctly applied, effected a grave miscarriage of justice. The common thread in these cases is that they involve "the others": women, children, and the elderly.

America's common law--the fabric of court-made rules and practices that has evolved in this country from English roots--is premised on "the reasonable man in the prime of life"; Forer argues that the system fails, sometimes miserably, when it cannot tolerate those who differ from that premise. In cases like these, justice--and judges--must be creative.

Carol was a prostitue and drug courier. Convicted of a drug crime, she was sentenced to a job instead of a jail so that she could continue to provide support for her two small children. One day, Carol showed up in Forer's chambers claiming that her probation officer was seeking sexual favors in return for the good reports she already deserved. Forer knew that any investigation would pit the word of the officer against that of a convicted prostitute--a hopeless match. So in one of the few happy endings in the book, Forer ordered Carol to report to the officer by mail, and she completed her three-year probation successfully.

The stories of children and the elderly are equally compelling. The legal system did nothing for the boy whose divorced parents called him by two different first names and used him as a pawn in their struggle against each other. Left without the most fundamental sense of identity, Mitchell/David became even more withdrawn as legal proceedings over his future ensued.

Equally disturbing are the stories of sexually abused kids. Forer shows how the legal system pushes them to testify, at no small personal expense, then often discounts their testimony and returns them to abusive homes. In the section on the elderly, Forer describes poignantly how we force the old to behave in court as if they are in their prime; we do not understand their forgetfulness.

There remains the problem of remedy. Here, Forer is firm and clear: Toleration of difference, and the development of special standards to reflect that difference, is essential public policy. She would, for example, have us develop laws that recognize that women are different--they are often the primary guardian of children, for instance--and that to achieve fair treatment we must give them special treatment. My concern with the case she makes is that special treatment can, and historically has, meant second-class treatment.

One of the hidden messages of this book is that we must fill the seats of justice with wise, creative people. Even in these cases, which present a number of truly unfair and upsetting outcomes, Judge Forer's hand, barely visible because of her modesty, has plainly improved the lives of the litigants before her. Would that there were more like her.