The decision in opposition to Sean “Diddy” Combs early this month despatched shock waves by way of the feminist neighborhood. Regardless of harrowing testimony and video proof of violence, jurors acquitted him of intercourse trafficking and racketeering. Combs and his workforce celebrated, whereas many People mourned the loss of life of #MeToo.
There was some comfort for many who wished Combs held accountable: The disgraced rapper was discovered responsible of violating the Mann Act by transporting male intercourse employees throughout state strains for prostitution, for which he might resist 20 years in jail.
Essential questions abound concerning the intercourse trafficking and racketeering prices — not solely whether or not the jury utilized the legislation justly primarily based on the proof of the case, but additionally whether or not the federal authorities ought to have used the intercourse trafficking and racketeering statutes to deliver prices, whether or not these legal guidelines ought to cowl the conduct at situation and what all of it means for ladies’s equality. These make for wealthy debates.
My level is narrower: We should always not rejoice the federal government’s profitable use of the Mann Act nor its extreme penalties for acts associated to consensual industrial intercourse. It is a poor mechanism to make up for a jury’s reluctance to convict on extra critical prices. The act doesn’t require coercion, and anybody concerned within the transportation of the intercourse employees might have been charged. If the federal government earnestly enforced the act, federal courts can be too clogged to perform.
Let’s be clear about how this works. If two folks drive from San Diego to Los Angeles to have interaction in intercourse work, they’ve dedicated no crime, though a later act of exchanging intercourse for cash may very well be a minor misdemeanor. Now think about the identical folks drive from California to Las Vegas. Even when intercourse by no means happens and cash by no means adjustments fingers, every has dedicated two Mann Act violations — as transporter and as confederate — warranting as much as 20 years in jail (10 years for every offense).
Is there some ethical distinction between touring to Los Angeles versus Las Vegas? The one distinction is that the federal authorities has jurisdiction over interstate exercise, and so crossing state strains triggers federal energy. In 1910, the federal government — largely for racist, xenophobic and patriarchal causes — seized that energy by way of the Mann Act. Formally titled the White-Slave Visitors Act, the legislation prohibited transporting ladies for prostitution or another “immoral objective.” It was later amended to use to the transportation of males as properly, and “immoral objective” was changed with “any sexual exercise for which any particular person could be charged with a prison offense.”
Prosecutors typically make use of easier-to-prove prices after they anticipate struggling to safe convictions on extra critical offenses. As an example, when proving intent to commit housebreaking is troublesome, they might fall again on “possession of housebreaking instruments.” However even placing apart the numerous civil libertarian and constitutional objections to such practices, the Mann Act has confirmed a very pernicious “make-up” crime.
The act was born of a time of widespread hostility to immigration, moralist backlash to sexually progressive city tradition and nervousness that rural wives and daughters would flee to cities searching for liberation. Like an early QAnon, the media and the general public fixated on fictional epidemics of white women being coaxed or kidnapped by international males and unscrupulous ladies into a lifetime of sexual slavery in “dens of iniquity.” One supporter of the act queried, “Lets defend our American civilization or decrease our superb flag to essentially the most despicable foreigners — French, Irish, Italians, Jews and Mongolians?” The legislation’s namesake James Mann seized the chance to characterize enslavement as one thing minorities do to whites, declaring that prostitution was “far more horrible than any black-slave site visitors ever was within the historical past of the world.”
Though handed within the title of saving ladies, the act turned a software for prosecuting them. In 1915, Justice Oliver Wendell Holmes Jr. permitted the prosecution of transported ladies, equivalent to “skilled prostitutes,” urging that we “abandon the phantasm that the girl all the time is the sufferer.” Within the notorious Thirties Scottsboro Boys case, white ladies feared they is perhaps prosecuted beneath the Mann Act and so fabricated rape claims in opposition to Black teenagers.
As Mann Act enforcement intensified and helped give rise to the trendy FBI, brokers focused interracial {couples} to discourage race-mixing. Regulation enforcement additionally targeted on suspected mobsters and political opponents vacationing with their girlfriends, celebrities like Charlie Chaplin and distinguished Black males together with heavyweight champ Jack Johnson, whom racists of the time condemned as audaciously flaunting his relationships with white ladies. Prosecuted in 1913, he was granted a posthumous presidential pardon in 2018. Historian Anne Grey Fischer notes that by the tip of the Progressive Period, “white slavery” had merely grow to be “a euphemism for interracial intercourse.”
Why does all of that historical past matter if right now’s prosecutors are utilizing the legislation in opposition to individuals who many suppose ought to be convicted of one thing? The drafters of the 1962 Mannequin Penal Code addressed this straight. They described the Mann Act as “a rare incursion of the federal authorities into the sector of regulating native morals” and a major instance of a “lifeless letter” legislation. Such legal guidelines allow prosecutors “to determine for themselves who shall be subjected to penal sanctions and why” and thus “lend themselves to discriminatory enforcement, e.g., the place the events concerned are of various races.”
Combs ought to be held accountable for his abusive and exploitative conduct. However we should always not cheer the follow of federal prosecutors selecting whom to punish primarily based on politics, press or public strain and dusting off overbroad, archaic legal guidelines. Their very existence ought to bother us.
Aya Gruber is a professor of legislation at USC Regulation Faculty and writer of the forthcoming ebook “The Crime of Intercourse.”
