concurring:
The law, in its majestic equality, fobbids THE RICH AS WELL AS THE POOR TO SLEEP UNDER BRIDGES, TO BEG IN THE STREETS, AND TO STEAL BREAD.
Anatole France, Le Lys Rouge, ch. 7 (1894).
I.
I concur in the judgment and, for the most part, in the opinion of the court. I write separately, however, because cases like this one implicate the liberty of the citizen and present a significant risk that a non-custodial parent will face imprisonment on account of poverty. The statute on which the court bases its affirmance of the judgment provides that knowing nonpayment of child support is prima facie evidence of willfulness, but it does not create a mandatory presumption; it is therefore constitutional. If carried too far, however, reliance on such a statute can result in the incarceration of an impoverished non-custodial parent on account of his or her poverty, without proof of an intent to violate a child support order. Such a consequence is legally and constitutionally unacceptable.
As in civil contempt proceedings, “[s]erious liberty interests [are] at stake, and the outcome of ... contempt in child support proceedings should not be in practical effect imprisonment for debt.” Langley v. Kornegay, 620 A.2d 865, 868 (D.C.1993).8 If David Warner were a rich man, or even a member of the middle class, I think it unlikely that he would have wound up in prison for non-payment of child support. Although, in light of the trial judge’s credibility findings, I cannot fault the court’s affirmance of Warner’s conviction, I think it appropriate to emphasize that incarceration for non-payment of child support can*244not be automatic, that it should be a last resort, and that it may not lawfully be imposed in the absence of proof that there has been an intentional refusal on the part of the non-custodial parent to comply with an order of the court.
II.
Warner appeals from his conviction of criminal contempt. As the District of Columbia acknowledges in its brief,
[t]he elements of criminal contempt are (1) willful disobedience (2) of a court order (3) causing an obstruction of the orderly administration of justice.... The offense requires both a contemptuous act and a wrongful state of mind.
Fields v. United States, 793 A.2d 1260, 1264 (D.C.2002) (emphasis added; citations omitted). In other words, in order to secure a conviction of criminal contempt, the prosecution must prove that the contemnor is at fault; poverty, without more, is a misfortune, not a crime. Important as the enforcement of child support against recalcitrant non-custodial parents is — and I harbor no illusions about the irresponsibility and even heartlessness of at least some purportedly “deadbeat dads”9 — courts may not lawfully disregard the critical difference between the intentional defiance of a court order on the one hand and genuine inability to comply with it on the other.
Because the contemnor’s disobedience must be “willful,” and because he must be shown to have acted with a “wrongful state of mind,” a court may adjudicate the con-temnor in contempt, whether civil or criminal, if (and only if) the contemnor has the ability to comply with the order of support. Desai v. Fore, 711 A.2d 822, 825-26 (D.C.1998); Lopez v. Ysla, 733 A.2d 330, 334-35 (D.C.1999). This does not mean, however, that a non-custodial parent may intentionally reduce his ability to support his child and then plead his self-imposed poverty as an excuse. The ability to pay “is not merely a function of actual earnings but is to be derived, more broadly, from earning capacity in the current job market, given one’s educational background and work experience.” Smith v. Smith, 427 A.2d 928, 932 (D.C.1981) (citation omitted); Lopez, 733 A.2d at 335. The following passage construing the federal Child Support Recovery Act (CSRA), 18 U.S.C. § 228, is equally germane in the present context:
The district court did not find that Ballek failed to seek employment as a contractor so that he would be unable to meet his support obligation, but this does not render the finding of willfulness insufficient. The government need not prove that defendant’s failure to accept gainful employment was caused by a desire to withhold payments from the spouse and children, or any similar evil motive. Cf. United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976) (per curiam) (requisite motive for willful tax violation is intentional violation of known legal duty). It is just as much a violation of the CSRA for a noncustodial parent to fail to pay child support where his refusal to work is motivated by sloth, a change of lifestyles or pursuit of new career objectives. For most people, bringing children into the world does limit life choices by imposing certain long-term financial obligations. A parent with minor children at home cannot quit work and become a hobo or go back to school as the fancy moves him. Nor may a non-custodial parent *245stop making child support payments because he has decided to pursue a postdoctoral degree in macrobiotics. A parent who is subject to an order for child support must seek a modification of the order before making such a lifestyle change. The family court judge can then determine whether such a change is consistent with the parent’s prior obligation to support the children. Where a parent does not seek such a modification, but chooses (for whatever reason) to eschew work that is otherwise available, he is subject to imprisonment for failure to pay, both under state law and under the CSRA.
United States v. Ballek, 170 F.3d 871, 875 (9th Cir.1999) (Kozinski, J.).
The obligation of a non-custodial parent to do all that he or she reasonably can to earn enough to comply with a child support order does not differ materially from the responsibilities of any citizen who is subject to an injunction or similar judicial command. We summarized the applicable principles in D.D. v. M.T., 550 A.2d 37 (D.C.1988):
Courts have a right to demand, and do insist upon, full and unstinting compliance with their commands. One who is subject to a court order has the obligation to obey it honestly and fairly, and to take all necessary steps to render it effective. Village of Great Neck Estates v. Rose, 279 A.D. 671, 108 N.Y.S.2d 95, 97 (2d Dept.1951), appeal dismissed, 303 N.Y. 904, 105 N.E.2d 491 (1951 [1952]). He or she may not do the prohibited thing, nor permit it to be done by his or her connivance. Roehl v. Public Utility Dist. No. 1 of Chelan County, 43 Wash.2d 214, 261 P.2d 92, 101 (1953) (en banc). Indeed, he or she must be diligent and energetic in carrying out the orders of the court, Swift v. Blum, 502 F.Supp. 1140, 1143 (S.D.N.Y.1980), and a token effort to comply will not do. Sound Storm Enterprises, Inc. v. Keefe, 209 N.W.2d 560, 568 (Iowa 1973).
Id. at 44.
This affirmative obligation is of particular importance where, as in this case, the purpose of the court’s order is to protect the interests of a child. “[0]ne of the most important and sensitive exercises of the police power [is to] ensur[e] that persons too young to take care of themselves can count on both their parents for material support.” Ballek, 170 F.3d at 875. Courts have no obligation to be unduly tenderhearted vis-a-vis those non-custodial parents who either refuse to pay what they can or who plead inability to pay when that inability is self-imposed. Cf. Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) (“no man may take advantage of his own wrong”); Marboah v. Ackerman, 877 A.2d 1052, 1053 (D.C.2005) (quoting Glus).
In the present case, the trial judge apparently found that Warner refused to work when he could have worked. Although the proof that this failure was intentional was perhaps less than overwhelming,10 I cannot say that there was no evidence to support the finding. Thus, although the record does not reflect that the judge or the District focused on the difference between a culpable refusal to pay and genuine inability to do so as carefully as they might have done, I discern no basis for reversal.
III.
The District and the trial judge relied upon D.C.Code § 46-225.02(d) (2001), which provides:
*246For purposes of this section, failure to pay child support, as ordered, shall constitute prima facie evidence of a willful violation. This presumption may be rebutted if the obligor was incarcerated, hospitalized, or disabled during the period of nonsupport. These circumstances do not constitute an exhaustive list of circumstances that may be used to rebut the presumption of willfulness.
Warner contends that this provision deprives him of liberty without due process of law, by shifting to the defendant the burden of proof in a prosecution for criminal contempt. The opinion of the court rejects this contention, and I agree with our disposition. A concern for the liberty interests at stake, however, leads me to add a few observations.
First, in order to avoid serious constitutional questions, we should construe the statute, according to its terms, as creating a permissive presumption or inference rather than a mandatory presumption. Section 46-225.02(d) states that failure to pay child support is “prima facie evidence of a willful violation.” In the next sentence, however, it refers to a presumption rather than to a prima facie case — the change in terminology is unexplained — and it does not specify whether any presumption is mandatory or permissive. For the reasons described below, this issue is of constitutional significance, and thus of critical importance.
In Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Supreme Court described the difference between a mandatory presumption and a permissive inference: “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw the conclusion.” That a mandatory presumption is rebuttable does not alter the analysis, for any mandatory presumption, rebuttable or not, “requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted.” Id. at 314 n. 2, 105 S.Ct. 1965 (emphasis added). While “[mjandatory presumptions ... violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of the offense,” a “permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts.” Id. at 314, 105 S.Ct. 1965. In Francis, the Court concluded that the challenged jury instruction created a mandatory presumption, and that it was therefore unconstitutional.
In Virgin Islands v. Parrilla, 7 F.3d 1097, 1100 (3d Cir.1993), the court considered a statute that provided that “infliction of injury is presumptive evidence of the intent [to commit mayhem].” On “plain error” review, the court held the statute unconstitutional because there was no substantial certainty of a significant connection between the predicate fact (the injury) and the presumed fact (intent to commit mayhem). The court first determined, based on the definitive language of the statute — infliction of injury is presumptive evidence of intent — that the presumption was mandatory. Turning to the “soundness of the presumption,” 7 F.3d at 1103, ie., that “the likelihood in the normal course of events that the presumed fact ... will flow from the proven fact,” id. at 1104, the court concluded that the connection was not substantially certain, and that the mandatory presumption of intent to commit mayhem rendered the statute unconstitutional.
*247The reasoning of the court in Parrilla applies with equal force here. First, as we have noted, the statute provides that failure to pay child support shall constitute “primo facie evidence” of willfulness. This is hardly the language of a mandatory presumption, even though the word “presumption” is used in the sentence that follows. Moreover, if we were to construe § 46-225.02(d), notwithstanding the italicized language, as creating a mandatory presumption, it would have the same vice as the statute held invalid in Parrilla. There are doubtless many instances in which the predicate fact (failure to pay court-ordered child support) is closely connected to the presumed fact (willfulness). But there are circumstances other than willfulness that may often contribute to a failure to pay, and we cannot be substantially certain, based on non-payment alone, that the failure was willful. At the very least, if we were to construe the statute as creating a mandatory presumption, there would be a serious question as to its constitutionality. “[A] statute should be interpreted, if fairly possible, in such a way as to free it from not insubstantial constitutional doubts.” Lynch v. Overholser, 369 U.S. 705, 711, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1234 (D.C.1997).
In Rogers v. Johnson, 862 A.2d 934, 938 (D.C.2004), in construing Section 46-225.02(d) — the very provision at issue here — we treated the statute as creating a prima facie case, and thus a permissive inference rather than a mandatory presumption. Quoting Raymond v. United States, 396 A.2d 975, 977 (D.C.1979), we stated that a defendant’s “failure to rebut a prima facie case could result in an adverse decision to him or her.” Id. (emphasis added; brackets omitted). If the pri-ma facie evidence language in the statute had created a mandatory presumption, then the appropriate word would have been “would,” not “could.” By holding that any inference in the statute is permissive, we assure its constitutionality.
Because the court does not construe the statute as creating a mandatory presumption, I discern no constitutional difficulty with our holding that inability to pay is an affirmative defense. Courts in other jurisdictions have also held that ability to pay child support is not an element of criminal contempt, and that the contemnor must assert inability to pay as an affirmative defense. See, e.g., State ex rel Mikkelsen v. Hill, 315 Or. 452, 847 P.2d 402 (1993) (concluding that a statute which creates an affirmative defense of inability to pay does not unconstitutionally shift the burden of persuasion);11 State v. Wallace, 136 N.H. 267, 615 A.2d 1243, 1245 (1992) (holding that inability to pay is an affirmative defense, but explaining that if the defendant raises the issue, the burden shifts to the state to prove ability to pay); Mayo v. Mayo, 173 Vt. 459, 786 A.2d 401, 406 (2001) (concluding that the burden is on *248the defendant to show inability to pay);12 Ex parte Roosth, 881 S.W.2d 300 (Tex.1994) (holding that inability to pay is an affirmative defense). See also Dorsey v. State, 356 Md. 324, 739 A.2d 41, 56 (1999) (explaining that ability to pay is not an element of criminal contempt, but holding that the state must nevertheless prove mens rea).
As I have previously noted, a wrongful state of mind is an element of criminal contempt. Fields, 793 A.2d at 1264. In order to reconcile the recognition of this element of the offense with the treatment of inability to pay as an affirmative defense, I would approach the issue in the way that the Supreme Court of New Hampshire did in Wallace, quoted ante maj. op. at 241, and I am glad that my colleagues have done the same. I emphasize, in particular, that “[i]n the support context, intentional noncompliance is evident where the paying spouse has the ability to pay and refuses to comply with the order or voluntarily impairs his or her ability to comply, for example by voluntary unemployment or underemployment.” State v. Wallace, 615 A.2d at 1245.
IV.
In light of the potential of prosecutions such as this one to implicate important liberty interests, I think it appropriate to conclude this concurring opinion by stating my understanding of what has not been decided in this case.
Many if not most non-custodial parents who have failed to comply with their child support obligations are likely to be non-affluent, and they may often have other debts as well. Some of these debts may be for the necessities of life. A father who owes child support may be behind in his rent and, if he fails to pay rent, he may face eviction and homelessness. Payment of the full child support obligation may leave a non-custodial parent without enough money to buy food or basic clothing, or to afford transportation to seek employment (or, if the parent has a job, to travel to his or her place of employment). He or she, or dependents residing with him or her, may face critical health problems.
In the present case, Warner — who was more than $38,000 in arrears with respect to his child support obligation — was ordered, as a part of his sentence, to pay $50.00 to the Victims of Violent Crimes Compensation Fund (WCCF). This order, too, is presumably enforceable by criminal contempt. At least theoretically, the simultaneous obligation to pay child support and victim compensation could put Warner between a rock and a hard place; if he paid $50.00 in conformity with one court order, he could be prosecuted for criminal contempt for not complying with the other. Surely, however, a person should not be incarcerated because he or she paid the wrong creditor, especially (but not only) if that creditor is armed with a court order.
At least as I understand the opinion of the court, we have decided nothing in this case regarding priority of obligations. We likewise have not ruled whether a noncustodial parent is guilty of criminal contempt if he or she fails to comply with a support order solely to avoid hunger or homelessness. I return to the words of Anatole France with which I began this *249opinion, and I express the hope that issues that remain open, such as those discussed above, mil be resolved in a reasonable and humane way which accommodates both the child’s need for support and the liberty interest of the parent. In this progressive capital of a democratic nation, we cannot tolerate a system which condemns a citizen to imprisonment on account of poverty rather than fault. There can be no de facto debtors’ prisons for citizens of the District of Columbia.
. In Langley, the father was conditionally imprisoned for civil contempt, but the liberty interests implicated in prosecutions for criminal contempt are just as compelling.
. 1 recall a case from my days on the trial court in which a father claimed to be able to pay a certain amount per month in child support, and no more. Examination of his financial statement revealed that his monthly car payment was more than twice what he said he could afford to pay each month to support his own son.
. Warner has previously been held in civil contempt on several occasions, but the record does not reveal his circumstances or ability to pay when he was so adjudicated. Cf. Langley, 620 A.2d at 868.
. The court in Mikkelsen also stated:
In the absence of an appeal of a support order or a motion to modify the support order, a court permissibly may infer that a parent who was ordered to pay support previously had the ability to pay and continues to have the ability to pay.
847 P.2d at 406. I have no quarrel with this statement as an abstract proposition. If, however, the contemnor is not well-educated and has not had the continuous assistance of counsel, I do not believe that he or she should face incarceration for criminal contempt simply because he or she failed to take measures to seek reduction of his or her child support obligation, even if the necessity of such measures would doubtless seem obvious to a competent attorney. Moreover, orders determining the amount of child support that a noncustodial parent is able to pay are issued without any requirement that ability to pay be proved beyond a reasonable doubt.
. In Mayo, however, the court also stated:
Contempt by its very nature is inapplicable to one who is powerless to comply with the court order. It would be utilized against only that person who, being able to comply, contumaciously disobeys, or refuses to abide by, the court order.
Id. (quoting Spabile v. Hunt, 134 Vt. 332, 360 A.2d 51, 52 (1976)).