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.

~ by britufhol on October 18, 2015.