Even if you think Sean Combs is guilty, his conviction should give you pause

Los Angeles Times

3 days ago

The verdict against Sean 'Diddy' Combs early this month sent shock waves through the feminist community. Despite harrowing testimony and video evidence of violence, jurors acquitted him of sex trafficking and racketeering. Combs and his team celebrated, while many Americans mourned the death of #MeToo.
There was some consolation for those who wanted Combs held accountable: The disgraced rapper was found guilty of violating the Mann Act by transporting male sex workers across state lines for prostitution, for which he could face up to 20 years in prison.
Important questions abound about the sex trafficking and racketeering charges — not only whether the jury applied the law justly based on the evidence of the case, but also whether the federal government should have used the sex trafficking and racketeering statutes to bring charges, whether those laws should cover the conduct at issue and what it all means for women's equality. These make for rich debates.
My point is narrower: We should not celebrate the government's successful use of the Mann Act nor its excessive penalties for acts related to consensual commercial sex. This is a poor mechanism to make up for a jury's reluctance to convict on more serious charges. The act does not require coercion, and anyone involved in the transportation of the sex workers could have been charged. If the government earnestly enforced the act, federal courts would be too clogged to function.
Let's be clear about how this works. If two people drive from San Diego to Los Angeles to engage in sex work, they have committed no crime, although a later act of exchanging sex for money could be a minor misdemeanor. Now imagine the same people drive from California to Las Vegas. Even if sex never occurs and money never changes hands, each has committed two Mann Act violations — as transporter and as accomplice — warranting up to 20 years in prison (10 years for each offense).
Is there some moral distinction between traveling to Los Angeles versus Las Vegas? The only difference is that the federal government has jurisdiction over interstate activity, and so crossing state lines triggers federal power. In 1910, the government — largely for racist, xenophobic and patriarchal reasons — seized that power through the Mann Act. Officially titled the White-Slave Traffic Act, the law prohibited transporting women for prostitution or any other 'immoral purpose.' It was later amended to apply to the transportation of men as well, and 'immoral purpose' was replaced with 'any sexual activity for which any person can be charged with a criminal offense.'
Prosecutors often employ easier-to-prove charges when they anticipate struggling to secure convictions on more serious offenses. For instance, when proving intent to commit burglary is difficult, they may fall back on 'possession of burglary tools.' But even putting aside the many civil libertarian and constitutional objections to such practices, the Mann Act has proven a particularly pernicious 'make-up' crime.
The act was born of a time of widespread hostility to immigration, moralist backlash to sexually progressive urban culture and anxiety that rural wives and daughters would flee to cities in search of liberation. Like an early QAnon, the media and the public fixated on fictional epidemics of white girls being coaxed or kidnapped by foreign men and unscrupulous women into a life of sexual slavery in 'dens of iniquity.' One supporter of the act queried, 'Shall we defend our American civilization or lower our glorious flag to the most despicable foreigners — French, Irish, Italians, Jews and Mongolians?' The law's namesake James Mann seized the opportunity to characterize enslavement as something minorities do to whites, declaring that prostitution was 'much more horrible than any black-slave traffic ever was in the history of the world.'
Although passed in the name of saving women, the act became a tool for prosecuting them. In 1915, Justice Oliver Wendell Holmes Jr. approved the prosecution of transported women, such as 'professional prostitutes,' urging that we 'abandon the illusion that the woman always is the victim.' In the infamous 1930s Scottsboro Boys case, white women feared they might be prosecuted under the Mann Act and so fabricated rape claims against Black teens.
As Mann Act enforcement intensified and helped give rise to the modern FBI, agents targeted interracial couples to deter race-mixing. Law enforcement also focused on suspected mobsters and political opponents vacationing with their girlfriends, celebrities like Charlie Chaplin and prominent Black men including heavyweight champ Jack Johnson, whom racists of the time condemned as audaciously flaunting his relationships with white women. Prosecuted in 1913, he was granted a posthumous presidential pardon in 2018. Historian Anne Gray Fischer notes that by the end of the Progressive Era, 'white slavery' had simply become 'a euphemism for interracial sex.'
Why does all of that history matter if today's prosecutors are using the law against people who many think should be convicted of something? The drafters of the 1962 Model Penal Code addressed this directly. They described the Mann Act as 'an extraordinary incursion of the federal government into the field of regulating local morals' and a prime example of a 'dead letter' law. Such laws enable prosecutors 'to decide for themselves who shall be subjected to penal sanctions and why' and thus 'lend themselves to discriminatory enforcement, e.g., where the parties involved are of different races.'
Combs should be held accountable for his abusive and exploitative conduct. But we should not cheer the practice of federal prosecutors choosing whom to punish based on politics, press or public pressure and dusting off overbroad, archaic laws. Their very existence should trouble us.
Aya Gruber is a professor of law at USC Law School and author of the forthcoming book 'The Crime of Sex.'