"The White-Slave Traffic Act of 1910" and Federal Hate Crimes Legislation: Many Parallels Gail Heriot

I got called “disgraceful” last week for noting the parallels between the proposed Matthew Shepard Hate Crimes Prevention Act (which has now passed both House and Senate) and the Mann Act (also known as the White-Slave Traffic Act).  It wasn’t the first time I’d made the comparison, but I may have caused the individual I was debating to quit the on-line, written debate, so that aspect of the experience was a first.  It did not, however, cause me to change my mind.  Let me flesh out that comparison, which I believe is rather striking:

In the late 19th century, Great Britain was swept by a hysteria over “white slavery,” a term then in vogue for forced prostitution.  Muckraking editor W.T. Stead, head of London’s leading newspaper, the Pall Mall Gazette, printed an expose about the case of Eliza Armstrong, a 13-year-old girl, who had been “purchased” for five pounds from her alcoholic mother for the purpose of prostitution.

The article was a sensation.  Crowds gathered in front of the newspaper offices to fight for a copy.  Political leaders feared riots.  The story confirmed what activists in the Social Purity movement had been claiming for years: British women and girls were being forced into a life of prostitution.  Special “white slavery” legislation had already been pending in Parliament, but the Eliza Armstrong case convinced legislators that immediate action was necessary.  Only after the law was passed did the facts of the Armstrong case begin to unravel.  The alcoholic mother who sold the girl had been told that her daughter was going to be a maid to an old gentleman (and may or may not have understood this as a euphemism).  The “purchaser” had been Stead himself, who did not actually violate the girl.  Well ... uh ... never mind.

Nevertheless, Stead and the members of the Social Purity movement were sincere in their belief that forced prostitution was a problem.  And I strongly suspect they were not wholly wrong.  But it was not nearly as widespread as they believed.  Intentionally or not, they had misled the public.

The hysteria spread to the United States in the early 20th century, where again, Progressive reformers were not wholly wrong.  Forced prostitution existed in this country too, although the fear that many women could be snatched off the streets at any moment and forced into prostitution was sensationalized and overblown.  Forced prostitution was one of “the” politically correct issues of the day, much as hate crimes is today. Clergyman preached against it.  Artists depicted it.  And it sold lots and lots of newspapers.  But not as much forced prostitution was going on as one would think from reading those reports.

Congress hurriedly passed the Mann Act in 1910.  Its wording was shockingly vague.  A person could be guilty of a federal crime if he transported a woman across state lines “for immoral purposes.”  This covered not just forced prostitution but Labor Day weekend jaunts to the beach with a woman to whom the accused was not married.  Immoral?  Maybe.  Worthy of calling out the FBI?  Certainly not.

In just a few years, federal prosecutors had warmed to the statute’s vagueness, and began to prosecute certain individuals for driving a woman across a state line for a lovers’ tryst.  Among those arrested for Mann Act violations were Charlie Chaplin, Frank Lloyd Wright, University of Chicago sociologist William I. Thomas, and African American athlete Jack Johnson.  Flamboyant WWII double agent Dusan Popov (the man who was said to have warned the United States about an impending attack on Pearl Harbor) was reportedly threatened by J. Edgar Hoover with a Mann Act prosecution if he did not leave the country immediately.  And the Mann Act was sometimes used to prosecute fundamentalist Mormon polygamists, since federal law does not actually prohibit the practice of polygamy.

What’s all this that got to do with the proposed Matthew Shepard Hate Crimes Prevention Act?  Well, let me count the ways:

1.  Like the anti-white slavery movement, the push for a federal hate crimes statute is founded on a kernel of truth.  Forced prostitution was (and is) a horrific crime that should be punished harshly.  Ditto for  murders like those of James Byrd and Matthew Shepard.  In neither situation, however, were state authorities falling down on the job, so it was unclear why a federal statute was needed.

2.  Like the hysterical claims about forced prostitution, the claims that the United States is undergoing an epidemic of hate crimes are being made by political grandstanders.  As James B. Jacobs and Kimberly Potter wrote in Hate Crimes: Criminal Law & Identity Politics, these claims are simply not credible.  And there ought to be a special place in hell for people who make a practice of scaring decent people with allegations of such an epidemic.

3.  High-profile hoaxes and other false alarms are common in both cases.  The Eliza Armstrong case was an example from the white slavery hysteria.  Fraudulent claims in the hate crimes context have occurred on campuses like Northwestern University, the Claremont-McKenna College, Arizona State University, and George Washington University.  The list is long.  The Coalition Against Insurance Fraud has reported an average of two hate crimes hoaxes per month involving insurance fraud.  And almost everyone remembers the Tawana Brawley case.

4.  Both the Mann Act and the proposed Matthew Shepard Hate Crimes Act are vaguely worded and broad.  Indeed, this is especially so of the hate crimes bill, which will likely cover many more crimes than the public realizes.  Despite its title, the proposed Act does not require proof of actual hatred.  It is sufficient if a crime involving minimal violence occurs “because of” someone’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.   But consider:

    *Rapists are seldom indifferent to the gender of their victims.  They are always chosen “because of” their gender. 

    *A robber might well take only from women or the disabled because, in general, they are less able to     defend themselves.  Literally, they’re chosen “because of” their gender or disability.

The level of violence needed to establish the crime set extremely very low.  Suppose someone hurls a group epithet in the course of an altercation.  (I don't know if you've noticed, but when people get mad they sometimes hurl whatever insults are handy.)  If the fight gets even slightly physical, it could be a felony.  The prosecution need only show the defendant intended to and did cause “bodily injury” (or that the defendant used a weapon and intended to cause bodily injury).  But bodily injury is defined to include “physical pain” or “any other injury to the body, no matter how temporary.”  A painful slap in the face will count.

5.  In both cases, abuse is likely.  Indeed, the potential for abuse in connection with the hate crimes bill is even greater than with the Mann Act, since the law will cover so many crimes.  Particularly troubling is the fact that the bill will be to make it possible for federal prosecutors to re-prosecute defendants who have been acquitted in state court.  As with all cases in which state and federal law apply to the same conduct, double jeopardy protections will not apply.

Indeed, officials from MALDEF and La Raza are already calling for a double prosecution in the Luis Ramirez case--a case in which the defendants were acquitted in state court of the more serious charges against them.

6.  I predict that in the future the legislators who voted for both these laws will be thought to have acted unwisely.  Just give it a few decades.