Application of Mann Act to Noncommercial Vice
Berkeley Davids
IT is a truly appalling condition of affairs that has come into existence by virtue of the interpretations put upon the Mann Act. If we can credit the press and rumor, unscrupulous women are everywhere blackmailing men who unguardedly permit themselves so much as to be in their company; and there have been discovered conspiracies for carrying on this most lucrative crime in a wholesale manner. Very obviously a man's intentions go for little or nothing. However innocent he may have been in his association with the female in question—whether prostitute or otherwise—he must pay, nevertheless. He may not be punishable under the statute—perhaps the least well informed of lawyers could advise him that he was innocent of any offense; he .is dealing, however, not with the law and its enforcement, but with his fellow men and women,—his friends and acquaintances. And while the law presumes innocence and requires clear evidence
(145) of wrongdoing, friendship and acquaintance are apt to credit rumor, and lightly, very lightly, create a presumption of criminality. He must protect, not his body from imprisonment, nor his goods from forfeiture, but that most fragile and delicate thing, the reputation, from the lightest soiling touch.
The present state of affairs is a most distressing one, and demands a prompt remedy. The courts might have prevented the evil, but now the situation appears to have gotten beyond their control. It will appear in the not distant future, if it does not at present, that the judges of our federal courts have surrendered to an ephemeral sentimentalism. Prostitution has existed since the beginning of time in all countries, and a variety of expedients has been resorted to for its suppression and control; but it seems to be safe to say that no intelligent community has for long entertained a thought of inflicting the penalties of the Mann Act on men—more often heedless youths—who do no more than indulge in sexual intercourse with women of mature years, especially when those women are shown to be prostitutes. Congress should promptly relieve the situation by declaring that the act shall not be interpreted to apply to other than commercialized vice. There can be little or no question, in view of antecedent legislation, but what this was the intention of Congress when the act was passed. And it is only because our courts have heeded the sensational press, shrieking "white slavery" in the highest of falsettos, that we find ourselves in the present dilemma.
Nor did it require any great amount of acumen to foresee the present situation, if the courts persisted in giving the Mann Act the too broad interpretation. Nearly three years ago there appeared in LAW NOTES a brief reference to some of the recent cases at that time, in course of which it was said:
"Whatever the phraseology of the Act of Congress of June 25th, 1910, may be, no one, we venture to say—no one supposed at the time of its passage that it was intended to apply to transactions involving only one woman and one man. The law was passed to suppress the importation into the United States or the transportation from one state to another of prostitutes intended to he maintained in houses of prostitution. The persons contemplated by the act as offenders are those who profit and live by the efforts of prostitutes. And until the Supreme Court has authoritatively interpreted the law, prosecuting officers would do well to bear this in mind. Indeed the newspapers have reported numerous refusals of district attorneys to recognize any offense in non-commercial intercourse, albeit it was interstate in character. . . . Some prosecutors have not been so discreet as those referred to, and in some cases shame and indignity have been brought upon citizens who have yielded to the temptations of virtueless daughters of Eve.
"The statute forbids the transportation of any female `for the purpose of prostitution or debauchery, or for any other immoral purpose.' No one will contend that mere sexual intercourse constitutes `prostitution.' That word means acts with several individuals. `Debauchery' may mean unlawful sexual intercourse. `Other immoral purpose,' if the words have any meaning at all in this connection, should be held, according to a rational commonsense interpretation, to mean something `other' than sexual intercourse. But the statute is very vague and permits of much latitude and speculation as to its meaning if one interprets it according to the dictionary-words-and-phrases-etymological method. If, however, we refer to the generally known intention and purpose of Congress in passing the act we are presented with no such difficulty. The act, as we have said, as well as the act of February 20th, 1907, contemplated nothing beyond commercialized vice and prostitution—the interstate transportation of females for the purpose of indiscriminate sexual intercourse with other persons than the transporter. And this will be the holding of the Supreme Court, without doubt. The reasons against a contrary conclusion are overwhelming. Consider the opportunity for blackmail afforded by the statute, if it should be held to embrace the foibles of every couple who have dispensed with the marriage ceremony. A woman who can induce a man to go with her from Philadelphia to Atlantic City, or to leave New York on a Fall River boat, may hold over his head the threat of exposure and prosecution under the statute. In truth, if the Federal Government were to take cognizance of all such cases it would need additional officers. The judicial mill would be working night and day. Nor does public opinion support this interpretation. The states do not punish men and women because they live together in an unmarried state; and they do not impose years of imprisonment upon youths who consort with prostitutes for a longer or shorter period.
"The Supreme Court will not be heard from on this subject for a long time, in all probability. In the meantime, judges and prosecuting officers would do well to accept the interpretation of Sir. Justice Pollock of the District Court for Kansas, that `it was not the aim of Congress to prevent the personal escapades of any man."
However, the generally accepted construction of the statute is otherwise. United States v. Burch, 226 Fed. 974; York v. United States, 224 Fed. SS ; Diggs v. United States, 220 Fed. 557 ; United States v. Vaughn, 209 Fed. 719. The courts shut their eyes to practical considerations, and persist in the blackmailing construction of the act. In a quite recent case the Circuit Court of Appeals said: "By noting current history we may be aware that the act, when applied to merely unlawful sexual intercourse, has been used as an instrument for blackmail or other oppressions; but that has nothing to do with a judicial ascertainment of the meaning and constitutionality of the act when it was adopted. Reference is made to public debates as indicative of the author's intent. But the writer of a bill may explain his purpose to his fellow members, and they may vote for it solely because in their judgment it has a wider or narrower scope than he states. This is one of the considerations that ages ago led to the adoption of the universal primary canon of interpretation that in the absence of ambiguity apparent upon the face of a document extraneous references are not permissible, and the meaning is to be gathered exclusively from the text with the words taken in their ordinary and usual meanings."
The plainest sort of case of seduction was presented by Welsch v. United States, 220 Fed. 764. The defendant was a locomotive engineer and the prosecuting witness was a girl sixteen years of age. No third person figured in the proceedings and the whole case turned upon the question whether the necessary interstate element appeared from the facts. As the Circuit Court of Appeals put it, there was "nothing but speculation and conjecture upon which to rest a finding of that persuasion which the act denounces, while the interstate journey was to the girl's own home, a home of unquestioned respectability, in which she had lived for years and in which she continued to live for nearly or quite a year afterwards, with all the outward appearance of innocence and virtue." And yet the sentence of the District Court was imprisonment in
(146) the penitentiary for three years,—a sentence that the appellate court wisely reversed. However, this case may be said to stand for the proposition that an ordinary case of seduction is within the federal statute. If this is true, then our State statutes are inapplicable to any case that involves interstate transportation of the female. For example, if a couple go from Manhattan across the Hudson River to Jersey City, and the man there seduces the girl, the statutes of New York and New Jersey do not apply to the case! In Johnson v. United States, 215 Fed. 682, it appeared from the record that the "girl was a prostitute; that defendant first met her several years before in a brothel; that throughout the period of their acquaintance they maintained sexual relations ; and that frequently defendant in his journeys about the country took the girl with him, or had her travel to meet him, and always for the purpose of sexual intercourse."
It seems to have been generally conceded that mere sexual intercourse between persons who are not married is to be deemed immoral, and the interstate transportation of a female with a view to sexual intercourse to be transportation for an "immoral purpose" within the meaning of the Mann Act. It may be inquired, however, what and whose code of morals denounces sexual intercourse between unmarried persons. For the federal enactment to apply, this denunciation must have a federal existence and origin, inasmuch as there can be no such crime against the United States unless it be declared by statute. No federal statute, apparently, declares sexual intercourse to be unlawful or immoral, though the opinions in the cases under the Mann Act often treat "immoral" and "unlawful" as equivalent terms. The conclusion that one is inevitably led to is that the courts have been over astute to carry out a supposed public policy,—or, rather, they have confused the clamor of the yellow press with sound public policy. Fornication, by the common law, never has been deemed punishable as an offense, unless accompanied by circumstances constituting it a public nuisance. And while there are many State statutes on the subject, few it seems contemplate the mere occasional act of sexual intercourse as being an offense. There must be a continued cohabitation, or the birth of offspring, or the parties or one of them must have been married,—in short there must be an element that is subversive of the morals of the community, which a clandestine act of intercourse is not.
The policy of the federal courts, that has led to the interpretations referred to above, differs very widely from that of State courts, if we may take the recent case of People v. Draper, 169 N. Y. App. Div. 479, as an example. This was a prosecution under the act "to amend the Penal Code relative to crimes against the person and against public decency and good morals and designed to prevent compulsory prostitution of women, and the importation of women from foreign countries, et cetera, for immoral purposes and to provide penalties therefor." It appeared that on a certain evening two girls were at the railroad station in Albany between ten and eleven o'clock, and were accosted by the defendant and a male companion, and after some conversation the four walked down Broadway to the foot of State street, where they took a car and went to a roadhouse known as Hennessy's. They danced and drank, and finally the defendant registered himself and one of the girls as husband and wife, and the two went upstairs together and occupied a room and cohabited during the night, while the other couple did likewise. There was no suggestion that the defendant asked for or received any money from the girls, or that he expected to derive any revenue from them, "the learned district attorney merely suggesting that his compensation was to come by way of a gratification of his own lusts; which," said the court, "is clearly not a legal consideration." Now, while the State statute is certainly as broad in its terms as is the federal enactment—indeed it seems much more comprehensive—the court, by Mr; Justice Woodward, concluded that "it must be entirely obvious that the purpose of the Legislature was not to place in the hands of two or more prostitutes, voluntarily accompanying one or more men upon a night's debauch, the power to blackmail these erring brothers, under threat of a term in State prison, but rather to reach and punish those consciousless vampires who make merchandise of the passions of men. The legislation dealt with the systematizing of prostitution and concubinage upon a commercial basis; it sought to prevent prostitution and concubinage as a business, and had no connection whatever with any merely individual cases of sexual indulgence."
In respect of prosecutions for transporting females for purposes of prostitution, the Mann Act appears to be meeting the real necessity for its enactment; and not a few cases of this sort have found their way into the recent reports. Wilson v. United States, 232 U. S. 563; Kinser v. United States, 231 Fed. 868; Hays v. United States, 231 Fed. 106; United States v. Chennault, 230 Fed. 942; United States v. Brand, 229 Fed. 848 ; United States v. Lombardo, 228 Fed. 980; United States v. Wright, 224 Fed. 285; Cohen v. United States, 214 Fed. 23; Suslak v. United States, 213 Fed. 913; Weddel v. United States, 213 Fed. 208 (a conviction of a female) ; Savage v. United States, 213 Fed. 31; Latham v. United States, 210 Fed. 159. It will be deemed, however, by most practitioners that, even in the case of this class of offenders, a penalty of ten years for transporting a prostitute is somewhat excessive, and out of proportion to the gravity of the offense— especially when we compare it with the penalties provided for burglary, robbery and even the lesser grades of homicide. Yet such a sentence—double the penalty of the statute—has met with affirmance. Myers v. Morgan, 224 Fed. 413.
BERKELEY DAVIDS.
New York.
