concurring.-
I concur in the result reached in the opinion of Mr. Justice Henry but upon somewhat different grounds which I shall briefly outline.
First, in my view, the statute, T.C.A., § 36-227(1), if valid, affords the defendant in a bastardy proceeding a privilege to refuse to answer interrogatories as well as to refuse to give trial testimony.
But, my judgment is that the statute offends due process and equal protection guaranties of the federal and state constitutions. See, Fourteenth Amendment to Constitution of the United States, Art. I, Sec. 8, and Art. XI, Sec. 8, Constitution of Tennessee.
Procedural due process is denied to the plaintiff in that she is deprived of the evidence of an important witness without justification. Obviously the testimony of the alleged father could be vital to the plaintiff’s cause in many eases. On the other hand no sufficient cause appears for granting the privilege to the defendant. No longer is self-incrimination a risk. Wilkerson v. Benson, Tenn. 542 S.W.2d 811 (1976); see also, Wigmore, 7 Evidence, § 2255 (1978). In short, the state has no vital interest to protect by granting the privilege; it is nothing more than a legal anachronism.
This statute also denies equal protection to the plaintiff; the defendant may require her to answer his questions regarding paternity of her child but she may not require him to answer her questions upon the same subject. This is not “gender discrimination,” but, it is “litigant discrimination” and, as above pointed out, is not justified by any apparent state interest. In fact, the interest of the state is to ascertain and establish by judicial proceedings the truth regarding the paternity of the child of the unwed mother.
For these reasons I concur in the decision of the Court.