Ann Bartow of Feminist Law Professors asks a rhetorical question that… really needs asking. First the setup

Authorities: Kidnapped girl rescued at [New Jersey —fl] motel

ABSECON — Police arrested a Vineland man and three other people after a Massachusetts girl called her mother to report she was being held against her will at a White Horse Pike motel.

The mother notified Absecon police, who responded late Tuesday night to the Super Lodge Motel room where the girl was staying. She told police she had been threatened with a stun gun, forced to stay in various motels for at least a week and forced to work as a prostitute in the Atlantic City area.

Police said the four captors returned to the motel shortly after officers arrived and were arrested.

...

The girl was treated and released from an area hospital and is now home in Massachusetts, according to a statement issued by the Absecon Police Department.

Authorities would[n’t] give the exact age of the victim, or when she was first allegedly kidnapped, stating only that she is under 18.

Source: South Jersey News

and now Bartow’s question:

Had she been 18 or over would she have been assisted, or arrested? Please, if you have any decency in your soul, support passage of the Trafficking Victims Protection Act.

She asked the question here.

Response #1:

Under the current version of the Trafficking Victims Protection Act the victim would have been assisted rather than arrested even if she was over eighteen. The current TVPA is very clear that its coverage extends to anyone who is subject to “force, fraud or coercion” and the mom’s complaint would have been sufficient to invoke the act.

The TVPA, which is up for reauthorization this year, has been subjected to some pretty substantial amendments in the House of Representatives that have pitted various anti-prostitution and anti-trafficking groups against each other with the result that the whole thing has become bogged down in the Senate.

But Bartow is correct that it would be a very big problem if TVPA is allowed to lapse. A very big problem because not only would the haphazardly-added anti-coerced-prostitution provisions go down but so would the main provisions of the bill against human trafficking of all kinds. The question is which side will blink first.

To echo Bartow, if opponents of reauthorization of the unamended bill had any decency in their souls they’d drop their amendments and let the bill pass.

So you still sometimes hear people talking about the halcyon days of life in America before the 1960s cropped up with all it’s nasty non-conformity and civil rights and environmentalism and, especially, feminism. I… I… I just don’t think most people, even most anti-feminists, would really enjoy it as much as they imagine. One thing, especially, I don’t think outside of maybe the most fervently anti-feminist/anti-modernist evangelical movements and the occasional South Carolina law professor’s other allies, I’m pretty sure most people would be uncomfortable with the 1960 the U.S. Supreme Court ruling that officially defined women as mentally “weak” and accepted the “legislative supposition” that women have “no independent will of their own.”

The case dealt with interpreting whether a woman could be compelled to testify against her husband under a prosecution of the 1910 “White-Slave Trade Act,” a.k.a. the Mann Act if the husband had been her pimp. The court said go for it.

Justice John Marshall Harlan II, evidently considered the most conservative judge on the court at the time wrote the majority opinion. (All emphasis mine.)

U.S. Supreme Court WYATT v. UNITED STATES, 362 U.S. 525 (1960)

it cannot be seriously argued that one who has committed this “shameless offense against wifehood” ... should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner’s attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected.

Second. The witness-wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her claimed privilege not to testify. We therefore consider the correctness of that ruling. 3 [362 U.S. 525, 528]

...

Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness-wife when she chooses to remain silent. The exception to the party’s privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife’s lips by his own unlawful act, see United States v. Mitchell, supra, at 1008-1009; Wigmore, op. cit., supra, 2239, and it is argued that where the wife has chosen … not to “become the instrument” of her husband’s downfall, it is her own privilege which is in question, and the reasons for according it to her in the first place are fully applicable.

We must view this position in light of the congressional judgment and policy embodied in the Mann Act. “A primary purpose of the Mann Act was to protect women who were weak from men who were bad.” Denning v. United States, 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. ... As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U.S.C. 2422 (consent of woman immaterial in prosecution under that section). It is not for us to re-examine the basis of that supposition.

Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife “voluntarily” to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her “will,” to enter a life of prostitution for his benefit – and the Act rests on the view that he can – by the same token it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution.

Fourth. What we have already said likewise governs the disposition of the petitioner’s reliance on the fact that his marriage took place after the commission of the [362 U.S. 525, 531] offense. Again, we deal here only with a Mann Act prosecution, and intimate no view on the applicability of the privilege of either a party or a witness similarly circumstanced in other situations. The legislative assumption of lack of independent will applies as fully here. As the petitioner by his power over the witness could, as we have considered should be assumed, have secured her promise not to testify, so, it should be assumed, could he have induced her to go through a marriage ceremony with him, perhaps “in contemplation of evading justice by reason of the very rule which is now sought to be invoked.” United States v. Williams, 55 F. Supp. 375, 380.

Read the full text of the opinion and dissent here.

Interestingly, in the dissent Chief Justice Earl Warren, who was regularly excoriated by evangelicals, conservatives, and other opponents of civil rights, 10-Amendment rights in general, and rulings that trumped “states rights” a.k.a. legislated racism, wrote that in passing the Mann Act Congress expressly relieved women of any culpability in prostitution on the assumption that, again, women lacked independent will to make such a decision and therefore it has to be someone else’s, anyone else’s, fault.

The Court does not and could not rely upon the record to prove that petitioner’s wife was somehow mesmerized by him when she was on the witness stand. The evidence, in point of fact, strongly suggests that the wife played a managerial role in the sordid enterprise which formed the basis for the prosecution. 2 Apparently this was the jury’s view, since the jurors asked the judge whether it would “make any difference or – if the woman had anything to do with the instigation or planning . . . .” The judge, of course, instructed them that this would be immaterial, but the jury nevertheless unanimously recommended leniency. Thus this case is a strange vehicle for the Court to use in announcing its “lack of independent will” theory. Presumably it is to be regarded as the exception which proves the rule.

The sole ground assigned by the Court for its decision is that it is a necessary application of the “legislative judgment underlying the [Mann] Act,” which “reflects the supposition that the women with whom [Congress] sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected [362 U.S. 525, 534] against themselves.”

...

In assessing the pertinence of the woman’s consent to the culprit’s criminal responsibility, Congress chose between the interest of society in eradicating the importation and interstate transportation of prostitutes and the interest of women to be protected from clever and unscrupulous profiteers, on the one hand, and the voluntary engagement of women in prostitution on the other. In view of the manifest imbalance of these competing considerations and the difficulty of definition and proof of the type of consent which might conceivably be relevant, it is hardly surprising that Congress passed the Mann Act and made consent entirely immaterial under 2422.

At any rate I can see why people like the Southern Baptist Convention would prefer that the Wilberforce Trafficking Victims Protection Reauthorization Act of 2007 should relocate sex trafficking from coverage under, you know, a 13th-Amendment-based anti-trafficking statute to coverage under the commerce-clause coverage of the White-Slavery Trade Act. They’re acidly committed to the once-common, now-radical proposition that women aren’t people. (See also Juhu Thukral’s guest post at Feministing about problems with shoving real trafficking under the Mann Act umbrealla.