Sunday, September 6, 2009

"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.

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Gail Heriot


The needs of the liberal are filled in showing compassion to the guilty. The need for hate crime legislation is to provide the liberal with justification to actually prosecute certain types of criminals above this standard, or to any standard, without being part of a discraceful icky mainstream that tends to enthusiastically prosecute all criminals.
Certain types of people must not get away with certain things.

Posted by: james wilson | Sep 6, 2009 12:52:04 PM

This type of article, along with Smith family updates, is the main reason why I subscribe to The Right Coast on my (evil) Google Reader.

Insightful, thought provoking, and informative. Thank you.

(P.S. This also reminds me of the story of the Beauty and the Beast. The Beast was really a beast but Gaston played on that kernel of truth and on peoples fears, along with the mob mentality, to get the villagers into attacking the Beast. I have a young daughter so that's probably why this particular story came to mind as I was reading your article!)

Posted by: Kdupps | Sep 6, 2009 10:02:54 PM

Far from being "disgraceful", I find your analogy quite descriptive.

Even those who generally favor hate-crime legislation wouldn't necessarily agree with vague and far-ranging statutory language. Thank you for pointing out these important issues with the Hate Crimes Prevention Act.

Since it has passed the House and Senate, I presume it will get signed into law?

Corkie the Dog

Posted by: Corkie the Dog | Sep 7, 2009 12:03:17 PM

I generally agree with your point that the supposed epidemic of "hate crimes" is routinely overblown for political purposes. But it's important to remember that the proposed law doesn't impose any penalty on anyone who isn't found guilty of a felony. As a law-and-order type, I find it hard to get all that upset about a law that toughens sentencing on at least one class of felons, however selectively.

Posted by: Dan Simon | Sep 7, 2009 2:01:02 PM

I agree that the hate crimes legislation does not criminalize anything that is not criminal already, so things could be worse. But it isn't true that it only criminalizes things that would otherwise be felonies. Conduct that would have been treated as simple (misdemeanor) assault is made a felony if it happens "because of" one of the prohibited motivations and is intended to and does cause "bodily injury." ""Bodily injury" is defined down to include pain or any other bodily injury "no matter how temporary."

I was watching some little children play in my neighborhood this afternoon as I watered the garden. I wondered if any of them were already felons under this soon-to-be law. Suppose the little girls start a fort and post a sign that says, "No Boys Allowed." A little boy comes anyway, so the girls slap him. It hurts. Boy cries. They slapped him "because of" his sex. They intend it to hurt. It does hurt. Under my reading of S. 909, the girls are guilty of a felony. Granted, the girls have misbehaved and would be guilty of a misdemeanor even under traditional law. But do we really want the federal criminal code to be that out-of-touch with common, ordinary life?

Posted by: Gail | Sep 7, 2009 3:17:22 PM

This is a very dangerous road we're traveling. The Act's implementation relies on total good faith of the prosecutors in all instances - a complete fantasy. Some of the proponents are going to be very unhappy when the political winds shift and their friends start to get whacked on this (say, for example, at some future date a gay rights activist causes minor mischief towards a traditional marriage defender - and the gay guy ends up hit on this).

Posted by: krome | Sep 9, 2009 9:22:13 AM

Dan Simon: I hear your comment about getting tough on those who commit felonies. But the standard of what is a felony has been, and continues to be lowered such that at some point, I expect we will all be guilty of committing three felonies before breakfast. At that point I will be rather less keen on getting tough on those who commit felonies. E.g. under the CPSIA if you have a garage sale and sell a product that has been previously recalled, you have now committed a felony under federal law. I would rather that felony actually meant a serious crime, and not something like this.

Posted by: Hal Duston | Sep 10, 2009 10:26:45 AM

It seems that you could have compared this legislation to literally any legislation based on exaggerated fears which gives the state the power to prosecute people in a way not intended by the legislators, and where the crimes that were intended to be prosecuted are already against the law. The Patriot Act, it seems to me, is the most glaring example of this kind of legislation, and it is recent and important. Jumping to the Mann Act, and in a way which inevitably implies that you don't take human trafficking seriously, is just political grandstanding (phoney provocateurism) itself. Congratulations, you got a reaction out of some sucker.

Posted by: sandra | Oct 28, 2009 8:58:33 AM

I don't think the Patriot Act is as good an analogy. Unlike supporters of the White Slavery Act and the Hate Crimes Act, supporters of the Patriot Act have not been known to fake their victimization. The connection between the White Slavery Act and the Hate Crimes Act seems quite strong to me.

Posted by: bg | Nov 2, 2009 9:20:56 PM