Thursday, December 04, 2003
The Rise And Unlamented Demise of One Vice Prohibition: The Mann Act*
In a tragedy of enormous proportions, the United States in the early years of the 20th Century was at the mercy of organized gangs of "white slavers," men who would buy or kidnap, sell and transport women for the purpose of coerced prostitution. No woman, married or unmarried, respectable or tawdry, was safe from the clutches of the traffickers in white slaves. Any civilized society would need to respond to such a fateful development, and the US Congress did. In 1910, the Mann Act, officially entitled the "White-slave traffic Act," became the law of the land. The Mann Act made it illegal to transport women across state lines "for the purpose of prostitution or debauchery, or for any other immoral purpose..." (The state line provision was necessary because the US Constitution generally provides "police powers" to the states, not the federal government. The authority of the Mann Act therefore had to be based upon the federal jurisdiction over the regulation of interstate commerce.)
This aggressive legislative response quickly eliminated the organized groups involved in the coerced transportation of women for the purposes of prostitution. The only catch was that, well, there were no such groups to begin with. A small percentage of prostitutes in the US at the time (as now) could reasonably be described as being involuntarily pressed into the trade, but the vast majority of prostitution was willful. And slavery or kidnapping were illegal even before the Mann Act was adopted.
So the Mann Act was a solution to a largely non-existent problem. It might be thought that it would then be repealed, or be quickly forgotten, a dead letter. But that turned out to be far from the case. Even though the White-slave traffic Act was aimed at coerced commercial sex, its language was actually rather broad: "for any other immoral purpose". With so little coerced commercial sex to go after, the Mann Act became a tool used to prosecute voluntary commercial sex, and even voluntary non-commercial sex. A Supreme Court decision in 1917 upheld the use of the Mann Act to prosecute two married men who in the midst of affairs with young women, crossed from California into Nevada. Thus freed of the requirement that prostitution be involved, prosecutors turned their attention primarily to private relationships: between 1917 and 1928, the bulk (about 70 percent) of Mann Act prosecutions were non-commercial, unrelated to prostitution. So adult men (and, to a lesser extent, women) who were voluntarily engaged in non-marital sex began to go to prison. Rich married men who were having affairs or who could be tempted into one became targets for extortionists, and jilted spouses of adulterers could use the threat of the Mann Act to drive better divorce settlements. The false accusations of rape leveled against the "Scottsboro boys" in 1931 may have been motivated to avoid Mann Act prosecutions.
Fortunately the moral panic eventually gave way to more pressing concerns, and by the end of the 1920s, most non-commercial Mann Act prosecutions came to an end -- though the statute could still be trotted out to imprison suspected malfeasors who were proving hard to convict of actual crimes or to harass troublesome types who were (otherwise) fully law-abiding. For instance, Charlie Chaplin's radical politics contributed to an (unsuccessful) Mann Act prosecution against him in 1944.
It seems that no law is so bad that it doesn't have its defenders. So the Mann Act continued, despite its manifest infringement upon liberty and the injustice with which it was applied. Attempts to repeal the act, or to revise it to exclude non-commercial prosecutions, were derailed by pressure from morals and religious groups. The offensive title of "White-slave traffic Act" was excised in the late 1940s, however, even as the offensive legislation itself remained in effect.
A little judicial activism helped take some of the fangs out of the Mann Act: much precedent was sidestepped in 1960 when a federal judge dismissed one non-commercial prosecution. The justice department soon ceased almost all prosecutions of consensual, non-commercial Mann Act violations. In 1978, the Act was revised to require a commercial or criminal purpose in its section relating to minors. Finally, in 1986, further revisions decriminalized what earlier would have been Mann Act violations for situations involving private, consensual, noncommercial sex. The Republic soldiers on, despite the forbearance that prosecutors and the corrections department now must show to licentious interstate fornicators.
Of course, we couldn't possibly manage to get by without any of our current vice prohibitions.
*This post draws heavily upon a wonderful book concerning the Mann Act by David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act, University of Chicago Press, 1994.