The decision in opposition to Sean “Diddy” Combs early this month despatched shock waves by means of the feminist neighborhood. Regardless of harrowing testimony and video proof of violence, jurors acquitted him of sex trafficking and racketeering. Combs and his staff celebrated, whereas many Individuals mourned the demise of #MeToo.
There was some comfort for many who needed Combs held accountable: The disgraced rapper was discovered responsible of violating the Mann Act by transporting male intercourse staff throughout state strains for prostitution, for which he may withstand 20 years in jail.
Essential questions abound concerning the intercourse trafficking and racketeering fees — not solely whether or not the jury utilized the regulation justly based mostly 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 carry fees, whether or not these legal guidelines ought to cowl the conduct at situation and what all of it means for girls’s equality. These make for wealthy debates.
My level is narrower: We must always not rejoice the federal government’s profitable use of the Mann Act nor its extreme penalties for acts associated to consensual industrial intercourse. This can be a poor mechanism to make up for a jury’s reluctance to convict on extra critical fees. The act doesn’t require coercion, and anybody concerned within the transportation of the intercourse staff may have been charged. If the federal government earnestly enforced the act, federal courts could be too clogged to perform.
Let’s be clear about how this works. If two individuals 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 might be a minor misdemeanor. Now think about the identical individuals drive from California to Las Vegas. Even when intercourse by no means happens and cash by no means modifications palms, 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 means of the Mann Act. Formally titled the White-Slave Site visitors Act, the regulation prohibited transporting girls for prostitution or every other “immoral purpose.” It was later amended to use to the transportation of males as properly, and “immoral goal” was changed with “any sexual exercise for which any individual might be charged with a prison offense.”
Prosecutors typically make use of easier-to-prove fees once they anticipate struggling to safe convictions on extra critical offenses. For example, when proving intent to commit housebreaking is troublesome, they could 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 looking for liberation. Like an early QAnon, the media and the general public fixated on fictional epidemics of white ladies being coaxed or kidnapped by overseas males and unscrupulous girls into a lifetime of sexual slavery in “dens of iniquity.” One supporter of the act queried, “Lets defend our American civilization or decrease our wonderful flag to probably the most despicable foreigners — French, Irish, Italians, Jews and Mongolians?” The regulation’s namesake James Mann seized the chance to characterize enslavement as one thing minorities do to whites, declaring that prostitution was “rather more horrible than any black-slave site visitors ever was within the historical past of the world.”
Though handed within the identify of saving girls, the act grew to become a instrument for prosecuting them. In 1915, Justice Oliver Wendell Holmes Jr. authorized the prosecution of transported girls, corresponding to “skilled prostitutes,” urging that we “abandon the phantasm that the girl all the time is the sufferer.” Within the notorious Nineteen Thirties Scottsboro Boys case, white girls feared they is perhaps prosecuted underneath 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. Legislation enforcement additionally centered on suspected mobsters and political opponents vacationing with their girlfriends, celebrities like Charlie Chaplin and outstanding Black males together with heavyweight champ Jack Johnson, whom racists of the time condemned as audaciously flaunting his relationships with white girls. Prosecuted in 1913, he was granted a posthumous presidential pardon in 2018. Historian Anne Gray Fischer notes that by the top of the Progressive Period, “white slavery” had merely change into “a euphemism for interracial intercourse.”
Why does all of that historical past matter if in the present day’s prosecutors are utilizing the regulation in opposition to individuals who many suppose needs to be convicted of one thing? The drafters of the 1962 Model Penal Code addressed this instantly. They described the Mann Act as “a unprecedented incursion of the federal authorities into the sphere of regulating native morals” and a major instance of a “useless letter” regulation. 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 needs to be held accountable for his abusive and exploitative conduct. However we should always not cheer the observe of federal prosecutors selecting whom to punish based mostly on politics, press or public stress and dusting off overbroad, archaic legal guidelines. Their very existence ought to bother us.
Aya Gruber is a professor of regulation at USC Legislation College and creator of the forthcoming e book “The Crime of Intercourse.”
