Jack Johnson Was Pardoned, But Taboo Sex Is Still Being Criminalized

President Donald Trump posthumously pardoned Jack Johnson on Thursday, erasing the black boxer’s century-old conviction for violating the Mann Act — a 1910 law that prohibited transporting “any woman or girl” across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose” — by driving his white girlfriend from Pittsburgh to Chicago.

The timing of Trump’s decision was remarkable. Two months ago, Trump signed into law the bipartisan Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which holds websites accountable for any sex-trafficking-related content posted by users. Its backers pitched it as a way to combat human trafficking. But like the Mann Act, FOSTA targets some of the people it ostensibly aims to protect: It has already shuttered many of the websites that voluntary sex workers — those who are not trafficked — used to screen clients and keep themselves safe.

Although drafted and signed more than a century apart, both laws are part of the United States’ long history of citing human trafficking as a pretext to crack down on consensual but taboo sex.

The Mann Act, also known as the White-Slave Traffic Act, was enacted in response to public hysteria about sensational yet unconfirmed reports of white women being kidnapped and trafficked by foreign men.

“There’s a huge range of things that [the act] allowed the government to punish and control,” Alexandra Levy, a law professor at the University of Notre Dame, told HuffPost. “It gave tremendous leverage to punish interracial marriage, polygamy and promiscuity.”

Throughout the first half of the 20th century, thousands of people were prosecuted under the act. Johnson’s conviction in 1912 was a prime example of the broad power of a law pitched as a way to stop what was at the time called white slavery. His crime was, essentially, being black and driving across state lines with a white woman, even though she went voluntarily and was his girlfriend.

Seven years after the Mann Act passed, federal officials instituted the American Plan to protect U.S. servicemen from acquiring sexually transmitted diseases before they took off to fight in World War I. The initiative allowed for the detention of women suspected of having a venereal disease. It was celebrated across the political spectrum for keeping American troops safe and for “curing” thousands of women of sexually transmitted infections ― though those “cures” often meant arsenic- and mercury-based medicines and involuntary sterilization.

Just like the Mann Act, the plan took aim at some of the most vulnerable, like Nina McCall, a young poor white woman from Michigan who was arrested in 1918 under suspicion of being a prostitute. After her arrest, she was forcefully examined and medicated, then detained in a federal medical institution for three months. In Michigan alone, more than a thousand women were detained under the plan by 1918.

The Mann Act and the American Plan were swift responses to changes in American culture and the seemingly sudden rights and privileges granted women, said Scott W. Stern, who recently published a book about the McCall case.

“In the early and late 1910s, women were getting the vote in various states, women were beginning to get formally educated, women were joining political parties, and premarital sex was skyrocketing, as was divorce,” he said. “Both the Mann Act and the American Plan were really about controlling women, and especially working-class and nonwhite women at a time when women were becoming ‘uncontrollable.’”

“The Mann Act today is most famous because of the prosecutions of certain very prominent men, like Charlie Chaplin, Chuck Berry and Jack Johnson,” Stern continued. “Certainly those are notable cases, but what I think far too few people know is that the Mann Act was used to lock up huge amounts of women and police their lives.”  

The first people arrested by officers of the Investigation Bureau — the Justice Department agency that would later become the FBI — for violating the Mann Act were a madam and five sex workers traveling together from Michigan to Chicago, Stern noted.

So while the Mann Act and the American Plan were ostensibly aimed at saving vulnerable women, in practice the initiatives allowed the Justice Department to control them, their sexuality, and the men they associated with ― many of whom were black or Chinese.

Measures like the Mann Act and the American Plan set the stage for legislation like FOSTA.

The law aimed to curb human trafficking by holding websites and social platforms accountable for hosting content related to the sex trade. But much like the Mann Act and the American Plan, it polices members of already marginalized communities.

The new regulations pushed sites like Craigslist and Backpage to scrub their platforms of not only sex-trafficking-related content but sex-related content in general. That meant that not just sex traffickers but also voluntary sex workers and people who engage in online sexual activities were forced further underground.

Melissa, a Phoenix-based escort, told HuffPost that FOSTA forced her back onto the streets. Lexi, a Florida-based escort, said she couldn’t screen her clients anymore without access to the sites.

Sex workers are often already members of marginalized communities, lacking easy access to banking and health care and safety from sexual or physical violence.

“It’s an important parallel,” Levy said.

The Mann Act and FOSTA used similar tactics to pass with overwhelming majorities. The Mann Act was passed unanimously, Stern said. The House and Senate versions of FOSTA passed almost unanimously. 

The Mann Act was written in response to accounts of enslavement of white women. Similarly, FOSTA used hysterical anti-trafficking rhetoric — often provided by evangelical Christian organizations that oppose all sex work — to garner support from the public.

“The public is so easily manipulated when you say ‘trafficking,’” Levy said. “It’s a very emotionally provocative issue. You can sort of leverage that term.” In both cases, the public was galvanized by terrifying (and misleading) anecdotes of sex-trafficked children or white women, only for the legislation to be used against marginalized people after it was signed into law.

Trump’s decision to pardon Johnson shows progress. But Johnson’s story also offers an important lesson, Levy argued.

“It should call our attention to the fact that laws that purport to be anti-trafficking can mask very serious social agendas,” she said. “Hopefully we can learn from this.”