Human Trafficking and the Evolution of the Mann Act

When I think of the phrase “human trafficking” I think of the movie “Taken” where teenage girls are kidnapped in Europe and sold into prostitution.  The first time I watched the movie I couldn’t imagine that things like this actually happen but I have come to learn that the plot is not entirely over the top.  Holly Austin Smith was 14 years old when lured into prostitution by a man that she met at the mall.  This man exchanged phone numbers with Holly. He got to know her, made her feel special, and promised her a life of glamour.  Within hours of running away with the man he coerced her into working Pacific Avenue in Atlantic City, NJ until dawn of the next day.  Thankfully, the following night and officer recognized Holly as being underage and arrested her. Many of the stories of trafficking victims do not end this quickly.

Until I started working on my paper I did not fully understand what human trafficking actually meant.  According to the United Nations Office on Drugs and Crimes, the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as, “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” There are three elements to the crime.  The act: the recruitment or transportation, the means: Threat or use of force, coercion, abduction, etc, and the purpose: sexual exploitation.

The first domestic attempt at addressing the problem of human trafficking was in 1910. The Mann Act, or “The White Slave Traffic Act,” made it a felony to transport women across state lines for “the purpose of prostitution or debauchery, or for any other immoral purpose.” The purpose of the Act was to combat prostitution, immorality, and human trafficking. The Act was named after its sponsor, James Mann, who introduced the act because prosecutors in Chicago believed that pimps were forcing girls into prostitution. The Court upheld the constitutionality of the Mann Act in Hoke v. U.S.  The Court stated that while Congress can not prohibit the manufacture of an article in a State, Congress can prohibit it’s transportation between the States. It would be an invasion of state’s powers to regulate prostitution, but Congress can regulate interstate travel for the purposes of prostitution because “Congress has power over transportation ‘among the several states…’” In addition to this power, Congress has the ability to exercise this power by means that are convenient. An individuals right to travel is not infringed upon by this Act, but commercialized sexual activity is curtailed.

The Mann Act had far reaching consequences that extended to consensual sexual activity. The Act not only made it a crime to engage in prostitution with commercial intention, it also extended to non-commercial sexual activity. The Act became a tool to persecute couples engaging in pre-marital affairs and men engaging in extra-marital affairs. In 1913, Drew Caminetti and Maury Diggs took their mistresses from Sacramento, California to Reno, Nevada and were arrested in Reno after their wives informed the police. Caminetti was convicted of one count of “transporting a certain woman from Sacramento, California, to Reno, Nevada, in interstate commerce, for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid woman should be and become his mistress and concubine.” Caminetti was sentenced to eighteen months imprisonment and fined $1,500. Diggs was indicted on six counts and convicted of four of them. Diggs was convicted for transporting and purchasing a ticket with the intent she should become his mistresses not only for his mistress, but for Caminetti’s mistress as well. Upon being convicted, Diggs was sentenced to two years imprisonment and was fined $2,000. It was argued that the Mann Act was intended to reach only trafficking of women for monetary gain, not the kind of behavior Caminetti engaged in. The Court found that Caminetti’s conduct was well within the plain language of statute; specifically transporting a woman across state lines for an immoral purpose. The court stated that, “the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.” This was the only evidence considered in making the ruling and the effect of this decision drastically changed the scope of the act. “The Court concluded that Congress intended to prevent the use of interstate commerce to promote sexual immorality,” rather than the initial belief that it was intended to prevent prostitution and trafficking.

In addition to prosecuting people engaged in extra-marital affairs, the Mann Act was also used to prosecute interracial couples. Jack Johnson, the country’s first black heavyweight boxing champ, was also one of the first African Americans prosecuted under the Mann Act. Johnson was convicted and given the maximum sentence for transporting a “prostitute” from Pittsburgh to Chicago.  This “prostitute” was his white girlfriend.  Johnson was sentenced to a year and a day, the maximum sentence at that time.  Johnson is only one of the many African Americans that were prosecuted for their relationships with white females.  The Act has since been amended and as the article says, the government has gotten out of the business of “legislating morality.”

The first amendment to the Mann Act came in 1978, and 18 U.S.C. § 2423 was enacted. This amendment updated the definition of “transportation” as well as added protections for the exploitation of minors, and these new amendments were gender neutral.In 1986, the Act was again amended, and the amendments made the entire act gender neutral. The phrases “debauchery” and “immoral purpose” were replaced with “any sexual activity for which any person can be charged with a criminal offense,” creating the current statute. This is one of the statutes New York Governor Eliot Spitzer could be prosecuted under.  Spitzer was caught on a federal wiretap arranging to meet with a high-priced prostitute in Washington D.C. Spitzer arranged for an Emproror’s Club VIP employee to travel by train from New York to Washington D.C. to engage in illegal sex.  This conduct is almost identical to the Caminetti case and if Spitzer paid for the train ticket his actions would almost certainly fall within conduct that is prohibited by the Mann Act.

Part of the challenge lawmakers face when drafting new legislation is the making the legislation effective without infringing upon first amendment rights. There have been first amendment challenges to § 2422(b) regarding adjudication for attempt charges. The court’s have unanimously held that the statue “does not infringe on protected speech and is not unconstitutionally vague or overbroad.”  In Ashcroft v. Free Speech Coalition, 535 U.S 234, 255 (2002), the Supreme Court held that “the over breadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Every Circuit Court of Appeal that has had to decide on this issue has held that “§ 2422(b) is not overbroad because there is no First Amendment right to persuade minors to engage in illegal sex acts.”  United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). The court went on to say that, “speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.”

A statute is void for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.”  Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)In United States v. Tykarsky , 446 F.3d 458, 473 (2d Cir. 2006) the Third Circuit Court of Appeals held that  § 2422(b) is not unconstitutionally vague because even though the statute does not define the terms “persuade,” “induce,” “entice,” and “coerce,” they “have a plain and ordinary meaning that does not need further technical explanation.”   The court stated that, “the absence of definitions for these terms poses no danger of chilling legitimate speech.” § 2422(b) regulates only conduct, not speech.  “No otherwise legitimate speech is jeopardized by § 2422(b) because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity.  Speech is merely the vehicle through which a pedophile ensnares the victim. Moreover, the scienter and intent requirements of the statute sufficiently limit criminal culpability to reach only conduct outside the protection of the First Amendment.” The court went on to say that, “any ambiguity in § 2422(b) is no greater than that found in many criminal statutes.”   § 2422(b) does not prohibit all communications with a minor; nor does it prohibit all communications that relate to illegal sexual activity. It only prohibits communications that actually or attempt to knowingly “persuade,” “induce,” “entice” or “coerce” a minor to engage in illicit sexual activity.  The statute only affects those who intend to target minors. It does not punish legitimate speech and it does not punish those who inadvertently speak with minors.  These terms are sufficiently clear to give a person of common intelligence, fair notice as to what is permitted and what is prohibited and to prevent arbitrary enforcement.

There has been significant improvement in human trafficking legislation over the years but there is still much more that needs to be done.  Part of the challenge, as with all the topics we have discussed, is that it is difficult for the law to keep up with rapidly changing technology.  A bill that recently advanced through the Senate is the Justice for Victims of Trafficking Act. the bill established a Cyber Crimes Center, which operates through the Department of Homeland Security within U.S. Customs and Immigration Enforcement to provide investigative assistance for cyber related crimes. Within the Cyber Crimes Center, a Computer Forensics Unit and a Cyber Crimes Unit is to be operated by DHS. This would be a huge step in the right direction to help with the online aspect of trafficking that we have had difficulty combating in the past.

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~ by britufhol on October 18, 2015.

11 Responses to “Human Trafficking and the Evolution of the Mann Act”

  1. Prior to doing the reading for this week, I knew human trafficking was more prevalent than any of us probably imagined, but I still underestimated the scope of it. That is is a $9.5 billion industry in the U.S. and up to 300,000 children may become victims of sex trafficking each year is alarming, disheartening and several other unfortunate adjectives that would be just as fitting. (http://thinkprogress.org/justice/2014/06/24/3452385/sex-trafficking/)

    That statistic alone makes it clear the status quo is not cutting it when it comes to efforts to curb human trafficking. This makes it similar in my mind to my topic of the online copyright infringement in that not only are the current laws insufficient to keep up with the developing technology, but they were not even cutting it before technology presented a who other set of issues.

    It seems like Brittany’s blog post made it clear that the courts have resolved the previously raised first amendment issues with the current legislation, but from what I read it does not get that specific with regards to online communication, and it focused rather on more obvious examples of inducement. Online efforts to coax minors into trafficking could be less obvious, harder to detect and done through more coded language. Because of the challenges that are inherent in doing any of this, more should be done to ensure that minors are not lured into traps online. Authorities using the Internet to combat such issues is obviously not a groundbreaking idea (“To Catch a Predator” debuted in 2004, but that was more about catching pedophiles than large-scale traffickers) but those $9.5 billion and 300,000 numbers show that more can still be done.

    Given that there are only so many ways you can amend statutes and the nature of the criminals being pursued, reworking statutes might not be an effective deterrent to people who are so depraved as to have no qualms trafficking minors for sex purposes. Thus, putting more law enforcement resources into stopping trafficking might be a more effective course of action than altering the Mann Act. The Cyber Crimes Center seems like a great start, and hopefully more measures of that kind are taken. Hopefully Brittany’s research will reveal that our government is taking this as seriously as it should.

  2. I never realized how close to home human trafficking was until my roommate, who is a social worker, told me she had to check backpage for one of her kids who she thought was continuing to be victimized by a human trafficking ring. It’s this and stories like Holly’s above that really scare and upset me.

    I can’t believe it took 68 years for the Mann Act to be amended. It’s good that it currently better reflects the intent behind it, with it being gender neutral and removing “immoral purpose” language. The fact that it was previously used to prosecute men transporting girlfriends or mistresses just shows that it was not targeting the right people and actions. I don’t think the current law violates free speech. I think it may be difficult to find a way to keep the scope narrow while still targeting all the trafficking activities intended.

    I think the Cyber Crimes Center will be a great use of time and money. Hopefully this will not only deter human trafficking, but also prosecute online human traffickers and rescue victims.

  3. Finally an issue I don’t think will have a lot of disagreement. Human Trafficking is significantly more prevalent than I ever really thought and the damage done to victims can be irreparable. The Mann act, even with its nefarious beginnings, seems to embody the way the public feels about the issue. As it is interpreted now, it is simply to prevent the exploitation of individuals liberties for monetary gain by others.

    The problem now, is not whether the majority of people think this is a terrible crime, but that with proliferation of anonymity on the internet, government agencies have a much harder time stopping criminals. With the ability to go on to the dark wen and advertise without fear of prosecution, the ability of these “pimps” to be able to grow their businesses seems to be relatively unchecked. I do not know how we could work to combat these individuals without infringing on law abiding citizens but this is a blight that needs to be removed from America.

  4. Such an eye opening topic. As we talked previously about sex tourism this goes hand in hand with that. A former roomate in residency for pediatric medicine shared with me a story of a 10 month old infant that sold into trafficking and ended up in her emergency room having suffered severe injury from being raped. The first amendment arguments are ridiculous and like Drew said, we can all agree the atrocity that human trafficking can still be occurring in the USA in today’s day and age is abominable. As is a theme we have touched on multiple time throughout the course, mental illness seems to be a thread that weaves all these crimes together. It is good that the Mann act modifications have decriminalized cowardly spousal infidelity, but the law doesn’t go far enough to address the still too prevalent human trafficking. Reading Holly Austin Smith’s story and knowing that there are thousands more like her’s each year really informs, or should inform at least, our attention at the legislative level. Instead of addressing this issue with a significant public interest, the legislature chooses instead to bicker over bipartisan issues that drive little progress in our great nation. Stories like these demand public outrage. Looking forward to our discussion Wednesday.

    • I want to add on one thing to my comment, after reviewing the NYU Law study on a different approach “Human Trafficking and Regulating Prostitution.” The study was an embedded link at the bottom of this article of the reading:

      http://journalistsresource.org/studies/international/human-rights/legalized-prostitution-human-trafficking-inflows

      “The second distinctive feature of our analysis follows from the first. The existing literature on “illegal goods” – prostitution is often put in this category, alongside illicit narcotics and weapons – typically considers a government that wants to decrease consumption of the good in question (Becker, Murphy, and Grossman, 2006). The regulatory issue considered in this paper is different: We assume that the government does not want to reduce consumption per se, but instead one particular mode of supply. We hence ask not whether regulation can eliminate all prostitution, but rather whether it can eradicate trafficking without infringing on voluntary prostitution. In our analysis, none of the existing approaches accomplish this goal; they either fail to eradicate trafficking or do so at the expense of voluntary prostitutes.
      However, we discover a novel regulatory framework – which is a combination of two existing approaches – that would accomplish the goal.”

      The approach they suggest is licensing prostitution, and then criminalizing john’s that buy sex from unlicensed prostitutes. It’s a blend of the Swedish and Dutch approach.

      The research underscores that the issue is coercion moreso than prostitution. As we’ve said with guns, drugs, and child porn, persons will pursue what they want to. The NYU research was an excellent work of scholarship in recognizing prostitution cannot be eradicated, but the supply of prostitution through coercion CAN and is what TRULY NEEDS TO BE regulated.

  5. This is a depressingly interesting subject. What pushed you to want to write about it? I think it’s been naive of me to not think about human trafficking in the US. We (Americans) always assume that we’re in this bubble when we are inside of our border, but it’s alarming how much goes on without much public outcry against it.

    Josh pointed out the $9.5 billion number and that is astounding. I agree with Josh also that I’m not anything with the laws is going to be a fix. It seems like we need more enforcement on the grounds and a lot more manpower and time to dedicate to this specific cause. This isn’t something that a regular detective should be working on, but rather a unit focused on identifying and fighting it.

    Obviously it was an issue before the internet and I can imagine the internet has pushed it even further in the worst direction. We can all agree that it is a horrific set of crimes and it’s interesting to think what we, as lawyers, can do to combat it. I look forward to the discussion Wednesday and what comes of your paper.

  6. I’d known about the issue of human trafficking for some time now as a result of general interest of immigration issues within the United States and understanding that, separate from the focus of this post, often undocumented persons within the U.S. are often targets for trafficking. But from the post, what perhaps gets me the most intrigued, is how a 1st Amendment defense could be attempted with the modern-version of such anti-trafficking statutes. Specifically, how can one even attempt raise a 1st Amendment defense for language that succeeded or attempted in luring a minor into sex work? To me, apart from all the other obvious revulsions, appears as such a bold move.
    As an aside, while I was vaguely aware of the history of the Mann Act before, after learning more about it, I just have a general sense of, are we ever going to encounter an issue in the U.S. that somehow isn’t racially connected? Given the nature of law which forces us to consistently deal with the past, it seems like our history just somehow found a way to dip racial context into almost everything.
    Also, hopefully in the discussion it’d be great to talk about what causes the up-kick in trafficking around large public events like the Superbowl or Olympics. Obviously the greater concentration of people ready to spend money is a factor, but I would think/hope, that an increase of police focus on such trafficking would deter people form showing up.

  7. I am very familiar with the human trafficking topic because I am also writing my seminar paper on this issue. However, even prior to this class I studied human trafficking in general in one of my undergrad courses and found it to be interesting. I always wanted to know what led people to engage in such deplorable acts. Unfortunately, after conducting my research, my answer is still not clear.

    I did get to research a little bit about what types of people become victims to human traffickers. Human traffickers normally prey upon vulnerable women and children primarily, for various reasons. Human traffickers can pose online as someone they are not or offer money to families who are struggling financially to take their loved ones and take advantage of them. I won’t get into the digital media aspect of it because I still have yet to blog on this issue but what I can say is that human trafficking is become more difficult to control.

    I noticed that Will posed a question as to why human traffickers choose large events such as football games to engage in the trafficking of people. I thought I would answer that based on the research that I have done. Human trafficking is not addressed with law enforcement a lot of the time so during these events where they should be aware of these issues, they disregard it and focus on other security issues at these events. I think the fact that human trafficking is not discussed as much as it should be is a great part of the problem. Fortunately, law enforcement is becoming more aware overtime about how serious this issue truly has become.

    Great blog! I look forward to the class discussion on Wednesday.

  8. Very interesting post. I think human trafficking in general is such a sad topic and I honestly never thought it could happen in the United States. Reading the article about the sting that occurred at the Super Bowl in 2014 where 16 juveniles were rescued shocked me. EN1. Some of the juveniles that were rescued were as young as 13 years old. EN1. I can’t believe people can be so cruel.

    I was also sadden to read about how human trafficking cases are rarely tried at the state trial level. EN 2. According to the article, about seven percent of human trafficking cases actually lead to a formal charge at the state trial level. EN2. The article discusses how there is a lack of funding for training and investigations at the state level. As someone who is striving to be a prosecutor, this concerns me. How is a prosecutor or other law enforcement supposed to protect the community, especially the children and juveniles?

    I think the Cyber Crimes Center could positively impact the future of this area of law. Hopefully the center can assist in training law enforcement, investigators, and state prosecutors.

    EN1: https://www.fbi.gov/news/pressrel/press-releases/sixteen-juveniles-recovered-in-joint-super-bowl-operation-targeting-underage-prostitution
    EN2: http://thinkprogress.org/justice/2014/06/24/3452385/sex-trafficking/

  9. Another great posting and also another difficult topic. Criminal law does draw out the depressingly bad side of human behavior. But so does family law!!! There will be a second posting from Marisol which will look at the proliferation of the use of social media in trafficking. Stay tuned for that.

    First, let me draw out William’s point on the law being impacted by racism, a little more thoroughly. The popular name of the Mann Act was the “White Slave Traffic Act” because Congress was only concerned with protecting white women from being taken across state lines. No violation of the Mann Act occurred if you took a black woman or a dark Latina across state lines. The law was routinely used to criminalize the conduct of black men who dared to violate social norms by have intimate relations with white women. We may have come a long way but remnants of these attitudes followed us into modern law. Initially when the U.S. adopted our version of the UN Protocol it did NOT provide protection for women born in the U.S. who were trafficked. The bill only protected foreign women who were trafficked into the U.S. Women born and trafficked here were prostitutes and subject to criminal prosecution. It took several years of effort to educate Congress that women born here could also be trafficked.

    The three states where most women are trafficked to are New York, California and Florida. I think Texas might come in as #4. Can you guess why? Think about the question a little. In class we can talk about why people traffic, what makes people vulnerable to being trafficked and why we can’t seem to keep it from happening. What events in Florida might lead to instances of trafficking? And of course, there will be many more things to discuss. See you in class.

  10. I find it in funny in the lawyerly way (as opposed to the regular human way) that one of happiest endings Holly Austin Smith’s story could’ve ended with was with an arrest that probably saved her life. Also funny in the lawyerly way is how the government employed the Mann Act initially; instead of using it properly, it was used to oppress minorities. The legal system will never cease to amaze me.

    What I found truly amazing in the readings was that the FBI managed to rescue 16 children from sex trafficking at the Super Bowl. I had never considered how, when thousands of people converge in one place, there is a huge market for the sex trade to flourish in. I had always heard about how white women/teens go missing when visiting sporting events abroad (like the World Cup, Olympics, etc.) but I had never really considered that the same things happen here in the United States. Likewise surprising to me, Pinellas County (just across the bay from Tampa, my hometown) is a hotspot for human trafficking. It just boggles the mind how abundant yet insidious human trafficking is in the modern world.

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