ELIZABETH MORGAN and Jacqueline Bouknight have something in common: hiding a child from the court. Both were cited for civil contempt of court and went to jail. Dr. Morgan, a Washington, D.C., physician whose story has been broadly publicized, had been imprisoned for refusing to reveal the whereabouts of her young daughter, Hilary, recently found to be living in New Zealand. Morgan had defied a court order giving visitation rights to her former husband. Morgan claims the child's father had sexually molested her. The mother said she would rather go to jail than submit Hilary to the trauma of possible further abuse.
Ms. Bouknight, on the other hand, is suspected of physical abuse of her infant son, Maurice. Maurice's whereabouts are unknown to the police and the court. Social welfare authorities say they believe that Bouknight may have murdered the child. She has a record of physically abusing him, and at one time she lost custody of him to social service authorities. At the time of his disappearance, Maurice was living with his mother but under a protective supervision arrangement with Baltimore's City Department of Social Services.
Bouknight's legal defense is not protection of the child, but protection of herself. Her refusal to tell the court where Maurice is has so far thwarted a criminal investigation. In fact, no charges have been brought against her.
The Baltimore mother has stood behind a Fifth Amendment protection against possible self-incrimination. But last week, both the mother's cause and the constitutional plank suffered setbacks. The United States Supreme Court ruled 7 to 2 that Bouknight cannot refuse to tell the court where her son is. The decision was narrowly drawn to the situation in this particular case. Bouknight was already under a custody court order, a protective supervision arrangement, the Supreme Court said, so she could not invoke the Fifth Amendment to resist a further court order to produce the child.
Associate Justice Sandra Day O'Connor, writing for the majority, said that the government, in demanding to know the whereabouts of Maurice, was exercising ``noncriminal regulatory powers.'' Also, because of the protective supervision arrangement, Bouknight was legally in the role of custodian - rather than mother - of the child.
Associate Justice Thurgood Marshall, dissenting along with Associate Justice William Brennan, challenged the majority's ``custodian'' conclusion and accused his colleagues of ``riding roughshod'' over Bouknight's constitutional rights.
Social services groups have generally supported the position that allowing parents to evade court orders by citing the Fifth Amendment might impair the ability of states to provide protection for children in jeopardy.
Some observers say that the court left open the possibility that Bouknight may be allowed to invoke the Fifth Amendment protection against self-incrimination later, in actual prosecution.
The situation leaves one uneasy. No one would condone child abuse. Nor would anyone justify using the constitution as a smoke screen to avoid criminal prosecution of a person who has committed a crime against a youngster.
We are a society of rules, however, and we must be careful whose access to constitutional protections we limit. Jacqueline Bouknight spent almost two years in jail without being charged with a crime, much less being brought to trial.
The contempt power of the court can be awesome. It has the effect of meting out punishment without due process. News reporters have been locked up for refusing to reveal sources. Lawyers have been held in contempt and gone to jail for withholding information from the court. The theory is that they will capitulate and comply with a court order after cooling their heels in custody for awhile. Some do. Some don't.
Elizabeth Morgan was released under a congressional act limiting jail time for civil contempt. Bouknight's lawyer continues to petition the court for her release, arguing that there is ``no reasonable chance ... that continued incarceration would be successful in coercing her to live up to the court order.''
The purpose of the Fifth Amendment, writes Georgetown University law professor Naomi Cahn, ``is to prevent the defendant from facing the `cruel trilemma of self-accusation, perjury, or contempt.'''
There may be good reasons to limit access of certain individuals at times to constitutional protections. When we do it, however, we must do it warily and perhaps at our own peril.