McCray v. United States (405 U.S. 944)/Dissent Douglas

MR. JUSTICE DOUGLAS, dissenting.

Petitioner was found guilty of five violations of the Mann Act and sentenced to a total of 10 years—some of the sentences being consecutive and some concurrent. There is no doubt that petitioner transported the same woman to various cities over a period of a year for prostitution. There were five counts, two of which charged transportation in commerce of the named woman between designated cities for the purpose of prostitution. Each was an offense under 18 U.S.C. § 2421, which provides a fine of $5,000 or five years in prison, or both. [p945] Three of the five counts charged that petitioner persuaded, induced, enticed, or coerced this same woman "to go from one place to another" in interstate commerce for the purpose of prostitution, each count charging an offense under 18 U.S.C. § 2422 which carries a fine of $5,000 or five years in prison, or both.

As a matter of semantics there is an offense under § 2421 whenever a person "transports" a woman for the illegal purpose and there is one under § 2422 when a [p946] person "induces" a woman to move interstate for the purpose of prostitution. The two sections seem complementary. But there are two substantial questions:

First, can § 2422 be fragmented into a series of acts, each being described as an inducement to the same woman to move interstate to live the life of a prostitute? Or within the meaning of the Act is she "induced" only once in the series?

Second, where, as here, petitioner and the woman move around the country in one continuous enterprise, is there a separate offense each time they cross a state line?

In Bell v. United States, 349 U.S. 81, we held that where a man for purposes of prostitution took two women across a state line on the same trip and in the same vehicle, he committed only a single offense. We said: "'When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.' Id., at 83."

A man who induces a woman to go on a prostitution tour certainly violates the Act. But what kind of inducement fits the Act? Here this woman, a divorcee, merely got instruction from petitioner as to how to work a cocktail lounge and bar. The legislative history of the Act shows a purpose "to prevent panderers and procurers from compelling... women and girls against their will and desire to enter and continue in a life of prostitution." S. Rep. No. 886, 61st Cong., 2d Sess., 10 (1910). It was supposed to reach those "who, by means of force and restraint, compel their victims to practice prostitution." Id., at 11. Examples were given of the use of "[l]iquor, trickery, deceit, fraud and the use of force" by a procurer "to place the girl under his power." Ibid. For maintaining a regime of prostitution, the Report said, [p947] "the procurer has [sic] resort to physical violence and the maintenance of a system of surveillance which makes her, to all intents and purposes, a prisoner." Id., at 12. There was no such force or compulsion in the present case.

The Report makes plain that the Act "does not attempt to regulate the practice of voluntary prostitution" or to displace any laws of the States. Id., at 10.

Since at best this case is a marginal one, should not the Act be strictly, not loosely, construed? Since petitioner and the woman (plus petitioner's wife) were on a year's tour, do the offenses multiply every time a state line is crossed or should the enterprise be considered as one entity? Or, where there is but one inducement, is there not, as far as § 2422 concerned, but one offense?

These are questions on which we should have briefs and argument.

The Court has not been consistent in its approach to this Act, as a comparison of Caminetti v. United States, 242 U.S. 470, with Bell v. United States, supra, makes plain. The present case of voluntary prostitution is an appropriate vehicle for a re-examination of the judicial decisions in this area.