Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990)

MauriceM, after being hospitalized at age threemonths with fresh and partially healed bone fractures, was placed into shelter care by a court order but was later returned to his mother Jacqueline’s custody. After a hearing, he was permitted to remain with her, provided that she complied with extensive conditions in a protective order. When Social Services later alleged that Bouknight had violated every such condition, the court granted a petition to remove Maurice from her control. Upon her repeated refusal to produceMaurice, the court ordered her imprisoned for civil contempt until she produced her son or revealed his location.

The juvenile court rejected Bouknight’s later claim that the contempt order violated the Fifth Amendment’s privilege against self-incrimination, which declares, ‘‘No person . . . shall be compelled in any criminal case to be a witness against himself,’’ although the state court of appeals disagreed.

The U.S. Supreme Court reversed. The privilege applies only to the state’s compelling the making of an act with a ‘‘testimonial or communicative nature’’ providing a link in a chain to potential criminal prosecution. Maurice’s body would be physical, not testimonial, but the act of producing him would communicate the testimonial facts of his existence, authentic identity as Bouknight’s son, and her possession of him. Nevertheless, the Court found the privilege inapplicable, partly because it does not extend to ‘‘collective entities,’’ like corporations, or to their representatives, such as records custodians, because they lack ‘‘private enclaves’’ needing protection. The Bouknight Court apparently viewed Bouknight as having custody of Maurice on behalf of the state as a ‘‘collective entity.’’

The Court also relied on the required records doctrine as taking the case outside the Fifth Amendment privilege. This doctrine requires first, that the purpose of government action is regulatory rather than furthering criminal investigation; and, second, that the records themselves have a ‘‘public aspect [making] them analogous to public documents,’’ a phrase generally requiring balancing the public need against the intrusion upon the individual. Furthermore, the required records doctrine likely cannot extend to inquiries directed not at the general public but at a ‘‘highly selective group inherently suspected of criminal activities,’’ such as requiring illegal gamblers to report their ill-gotten income to the Internal Revenue Service.

For the Bouknight Court, the demand to produce Maurice served the state’s regulatory interest in protecting his safety, counterbalanced any intrusion upon Bouknight, and was not aimed at a ‘‘selective group inherently suspect of criminal activities’’ because a child may be placed by Social Services with foster parents or relatives not suspected of any crime. Without deciding the question, however, the Court noted that some privilege protection might remain for child custodians under certain circumstances.

Bouknight remained incarcerated for more than seven years after the Supreme Court’s opinion. After her release, attorneys portrayed her ‘‘as a champion of civil disobedience, comparing her to the Rev. Martin Luther King Jr.’’ State officials disagreed, adding that they feared her son was dead.

ANDREW E. TASLITZ

References and Further Reading

• Merker Rosenberg, Irene, Bouknight: On Abused Children and the Parental Privilege Against Self-Incrimination, Iowa Law Review 76 (1991): 535

Cases and Statutes Cited

• Fisher v. United States, 425 U.S. 391 (1976) 
• Haynes v. United States, 390 U.S. 85 (1968) 
• Marchetti v. United States, 390 U.S. 39 (1948) 
• Shapiro v. United States, 335 U.S. 1 (1948) 
• United States v. Doe, 465 U.S. 605 (1984) 

See also Coerced Confessions/Police Interrogation; Self-Incrimination (V): Historical Background