MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner was tried and convicted of knowingly transporting a woman in interstate commerce for the purpose
First. Our decision in Hawkins established, for the federal courts, the continued validity of the common-law rule of evidence ordinarily permitting a party to exclude the adverse testimony of his or her spouse. However, as that case expressly acknowledged, the common law has long recognized an exception in the case of certain kinds of offenses committed by the party against his spouse. Id., at 75, citing Stein v. Bowman, 13 Pet. 209, 221. Exploration of the precise breadth of this exception, a matter of some uncertainty, see 8 Wigmore, Evidence (3d ed.), § 2239, can await a case where it is necessary. For present purposes it is enough to note that every Court of Appeals which has considered the specific question now holds that the exception, and not the rule, applies to a Mann Act prosecution, where the defendant's wife was the victim of the offense.
While this Court has never before decided the question, we now unhesitatingly approve the rule followed in five different Circuits. We need not embark upon an extended consideration of the asserted bases for the spousal privilege (see Hawkins, supra, at 77-78; Wigmore, op. cit., supra, § 2228 (3)) and an appraisal of the applicability of each here, id., § 2239, for it cannot be seriously argued that one who has committed this "shameless offense against wifehood," id., at p. 257, should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner's attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected.
Second. The witness-wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her claimed privilege not to testify. We therefore consider the correctness of that ruling.
While the question has not often arisen, it has apparently been generally assumed that the privilege resided in the witness as well as in the party. Hawkins referred to "a rule which bars the testimony of one spouse against the other unless both consent," supra, at 78. (Emphasis supplied.) See Stein v. Bowman, supra, at 223 (wife cannot "by force of authority be compelled to state facts in evidence"); United States v. Mitchell, supra, at 1008 ("the better view is that the privilege is that of either spouse who chooses to claim it"); Wigmore, op. cit., supra, § 2241; McCormick, Evidence, § 66, n. 3. In its
Third. Neither can we hold that, whenever the privilege is unavailable to the party, it is ipso facto lost to the witness as well. It is a question in each case, or in each category of cases, whether, in light of the reason which has led to a refusal to recognize the party's privilege, the witness should be held compellable. Certainly, we would not be justified in laying down a general rule that both privileges stand or fall together. We turn instead to the particular situation at bar.
Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness-wife when she chooses to remain silent. The exception to the party's privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife's lips by his own unlawful act, see United States v. Mitchell, supra, at 1008-1009; Wigmore, op. cit., supra, § 2239, and it is argued that where the wife has chosen
We must view this position in light of the congressional judgment and policy embodied in the Mann Act. "A primary purpose of the Mann Act was to protect women who were weak from men who were bad." Denning v. United States, 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. See H. R. Rep. No. 47, 61st Cong., 2d Sess., pp. 10-11. As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U. S. C. § 2422 (consent of woman immaterial in prosecution under that section). It is not for us to re-examine the basis of that supposition.
Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife "voluntarily" to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her "will," to enter a life of prostitution for his benefit—and the Act rests on the view that he can—by the same token it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution.
Fourth. What we have already said likewise governs the disposition of the petitioner's reliance on the fact that his marriage took place after the commission of the
The ruling of the District Court was correctly upheld by the Court of Appeals.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting.
Last Term this Court held that a wife could not voluntarily testify against her husband in a criminal prosecution over his objection. Hawkins v. United States, 358 U.S. 74. The Court finds the case at bar so different from Hawkins that it approves overriding not only the husband's objection, but also the wife's. In both cases the husband was prosecuted for violation of the Mann Act, 18 U. S. C. § 2421. The only relevant difference is that here the wife herself was the person allegedly transported by the husband for purposes of prostitution. Morally speaking, this profanation of the marriage relationship adds an element of the utmost depravity to the ugly business of promoting prostitution. Legally speaking, however, this does not warrant the
The Court's analysis of the problem here presented is sound in so many ways that the unsoundness of its conclusion is especially disappointing—and somewhat curious. Briefly, that analysis appears to be as follows. The Court accepts the principle that the spousal privilege belongs both to the person charged with the offense, as we held in Hawkins, and also to the witness. Moreover, the Court rejects the notion that the latter may be barred from asserting the privilege simply because, in a given case, it may be improper for the former to invoke it. The defendant may not claim the privilege where he is charged with "certain kinds of offenses committed . . . against his spouse," and the Court believes that the instant case involves this type of crime. It apparently recognizes, moreover, that the policy behind this exception may be effectuated in the ordinary situation by giving the injured party the option to testify, without compelling her to testify.
The fatal defect in this conclusion lies in the Court's evaluation of the mental state of the wife, an evaluation which finds no support in the record and which cannot properly be justified by any legislative enactment.
The Court does not and could not rely upon the record to prove that petitioner's wife was somehow mesmerized by him when she was on the witness stand. The evidence, in point of fact, strongly suggests that the wife played a managerial role in the sordid enterprise which formed the basis for the prosecution.
The sole ground assigned by the Court for its decision is that it is a necessary application of the "legislative judgment underlying the [Mann] Act," which "reflects the supposition that the women with whom [Congress] sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected
Of particular interest is the past action and attitude of Congress with respect to the privilege. As the Court
In my judgment, the Court in this case strays from the course of appropriate judicial reserve marked by Hawkins. I am unwilling to join in a decision based upon an assumption of fact which is without support in the record and which involves a delicate, and essentially legislative, determination. I therefore dissent.
"This privilege has no longer any good reason for retention. In an age which has so far rationalized, depolarized, and de-chivalrized the marital relation and the spirit of Femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the merest anachronism, in legal theory, and an indefensible obstruction to truth, in practice." 8 Wigmore, Evidence, 232.
It is arguable that this is as much an ipse dixit as the statements in favor of the rule which Wigmore criticizes upon that very ground. Id., at 226-228. In any event, it is evident that his conclusion involves value judgments which the legislature is far better adapted to accept or reject than the judiciary.
For a view contrasting with Wigmore's, see Bassett v. United States, 137 U.S. 496, 505-506, where this Court narrowly construed a legislative provision regarding the privilege:
"We do not doubt the power of the legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law . . . can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit."