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March 18, 2008

18 U.S.C.A. § 2421: Spitzer? I hardly knew her!

By Rooks

For anyone living under a rock – yes, Sub-3 counts – Eliot Spitzer, (newly former) governor of New York, was recently discovered, via federal wiretap, to be patronizing some seriously expensive (like, more than a week’s salary in NYC Biglaw expensive) prostitutes. When the prostitution ring got busted, so did he, and Albany still has a touch of the vapors to prove it.

Since about 37 different people this past week asked me what I thought about Spitzer’s shenanigans and if I was planning to write something about the entire debauched debacle, I figured that popular demand dictated that I weigh in on this, a completely over-reported subject. So, if you’ve reached your Spitzer saturation point and cannot deal with even one more article about the guy, blame your classmates.


So, what do I think? Primarily, I think it’ll come as little surprise to anyone who’s been paying attention that I’m vehemently for the decriminalization of prostitution. There may be slightly more surprise that I disapprove of Spitzer’s actions, for two main reasons. First, by all accounts his wife had no idea, and, let’s face it, that sucks; second, there are a number of rumors going around that Spitzer was paying for unprotected sex, and that really sucks. If he just had to cheat without some sort of arrangement (which I don’t buy, but whatever), he could’ve at least wrapped it up – to endanger not only the wellbeing of his marriage, but also the wellbeing of his wife (presuming they still enjoyed a sexual relationship) is just shady.

A third thing that annoys me about all of this is that he busted prostitution rings during his tenure as attorney general, and was all filled with moral rectitude about it – way to be a hypocrite, Eliot. Of course, this is no different than any number of political and/or community leaders who publicly hate on their own bad habits (see generally Craig, Haggard, et al), but it doesn’t mean it annoys me any less. So do I think what Spitzer did is reprehensible? Sure. Do I think it should be illegal? Not exactly.

But enough about what I think.

In the interest of keeping things (slightly) fresh, now seems like as good a time as any to talk about the Mann Act (also known as the White Slave Traffic Act), which has gotten some press in light of Mr. Spitzer’s poor choice of sexual venue, but not nearly enough.

The Mann Act was originally enacted in 1910, and, in that incarnation, banned the transportation of “any woman or girl” across state lines for prostitution, debauchery, or immoral purposes. (The Commerce Clause: laying the smackdown on getting laid since 1910.) This basically meant that any sex the US government construed as immoral, whether or not it was technically illegal, could be prosecuted under the Mann Act, provided you made a run for the border before you did it. (Take that, Taco Bell.) Though Congress couldn’t regulate any of this activity per se, extra-marital sex, unwed sex, interracial sex, polygamous sex, and, of course, paid sex were all fair game as soon as one or more participants left their state in order to engage in them.

In 1986, someone realized that this was a mite bit ridiculous, and the Mann Act was altered to apply to all genders, and only sex for which one could be charged with a criminal offence. As Bowers v. Hardwick, randomly enough, also came down in 1986, this version would still include gay sex, statutory rape, polygamy, possibly BDSM, and of course, paid sex.

The last time 18 U.S.C.A. § 2421 was altered was in 1998, to change the sentencing guideline. Other than that, the main text remained short, if less than sweet: “Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.”

The only way (arguably) to avoid prosecution under the Mann act is if the state to which you travel sports legalized prostitution. (Though the above reading is a valid one, there appears to yet be some argument as to whether the law is actually applied in such a way.) Since Spitzer provided the transportation for his alleged hook-up from NYC to DC (Chinatown bus represent!), and prostitution remains a misdemeanor in our nation’s capitol, he would qualify for prosecution under the Mann Act, should the government seek to pursue it; this could mean the difference between 90 days in jail and 10 years.

The Mann Act probably won’t make it onto your bar exam, but, just in case you, like Spitzer, have a vested interest in its application (ahem), here’s a hypo to make sure you’ve gotten the general idea.

Ren, Ariel, Rusty and Willard travel across state lines to engage in a night of dancing (which is prohibited in their hometown due to its inextricable tie to prurient feelings) and possibly sex. Assuming Ren and Rusty are both 18, while Willard and Ariel are 17, and that all four dance, after which Ren and Ariel engage in oral sex, while Rusty and Willard have heterosexual intercourse in the traditional manner, can any or all of the teens be prosecuted under the Mann Act?

Answer: That depends. (See? Just like a law school exam!) If the age of consent in the state to which the teens traveled is 18, and there are no exceptions for consenting minors, then Rusty can be charged under the Mann Act, provided the state is not one in which the alleged victim must be female to qualify for statutory rape protections. If the state specifically prohibits acts of sodomy to minors, even with consent (a la Kansas), then Ren could also possibly be charged under the Mann Act, as oral sex generally qualifies as sodomy. If all teens were above the age of consent in their destination state, and all acts performed were legal, then it is unlikely, though not, it seems, impossible, that any of the teens would be charged under the Mann Act. Bonus: However, under the Mann Act of 1910 as interpreted by Caminetti v. United States, even if no sex was had, if the government saw fit to agree with the teens’ home community that dancing was, in fact, immoral (John Lithgow is a very persuasive man), all four could still be charged (though it might well depend on who was driving the car and who paid for gas).

Special thanks to Prawfsblog and Volokh Conspiracy for some good info and robust debate, respectively, including the (new to me) fact that prostitution is technically legal in Rhode Island. Who knew?


To submit a question or idea for Res Gestae’s sex columnist, please feel free to e-mail rg@umich.edu, or, if you’d prefer greater anonymity, deposit your question under cover of night in the RG student group pendaflex outside Legal Research 116.