"To Foster Family Peace"

In his orange Cadillac with leopard-skin upholstery, Dogpatch (Okla.) Dance Hall Owner James Clifton Hawkins picked up Lola Fay Moudy, 17, a waitress in a Dogpatch tavern, one night in November 1955. He drove her to nearby Mena, Ark. to have a headlight fixed, then took her to Tulsa, Okla. and set her up in the world's oldest profession. Hawkins soon found that he had made one big mistake: by transporting Lola Fay across a state line for immoral purposes, he had violated the federal Mann Act; he was found guilty and sentenced to five years in prison. But last week the U.S. Supreme Court found that the prosecution had made an even bigger mistake: it had summoned Hawkins' estranged wife, a prostitute who had taken Lola Fay in hand, to testify against him.

The question before the Supreme Court: May a wife, even voluntarily, testify against her husband in a case where no injury to herself is involved? The point had a curious common-law basis. Because of self-interest, the common law once barred a defendant from testifying either for or against himself; because spouses were considered legally indivisible, common law prohibited one from testifying for or against the other. In the Supreme Court's words, "reason and experience" have mostly wiped out the historic basis for the rule. Defendants, although constitutionally privileged not to testify against themselves in criminal cases, can certainly take the stand on their own behalf. Spouses are no longer considered a legal unit. Indeed, by act of Congress, one spouse is now allowed to testify against the other in cases of bigamy, polygamy, unlawful cohabitation, etc.

Such changes left a need for reclarifying the rule about spouses testifying against each other--and the Supreme Court undertook that reclarification in a unanimous opinion by Justice Hugo Black (with the court's newest member, Justice Potter Stewart, 43, concurring, even while calling the rule anachronistic).

"The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake," wrote Black, "was a belief that such a policy is necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well." So saying, the court in effect freed James Clifton Hawkins, ironically building a monument to home and hearth out of the relationship of two whores and a pimp.

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