The racist origins of the law at the center of Sean ‘Diddy’ Combs’ prosecution

Sean “Diddy” Combs was arrested on Monday and charged with racketeering, sex trafficking and transportation to engage in prostitution. Each is a serious federal crime, and the powerful hip-hop mogul is facing very serious prison time if convicted. (Combs has denied the allegations and pleaded not guilty.) Notably, the third count in Combs’ indictment comes from a federal law dating back to 1910. It’s known today as the Mann Act. Federal prosecutors don’t often use the law’s other name, and for good reason. The Mann Act is also known as the “White Slave Traffic Act.”

Many laws have been passed because of outdated — or simply racist — societal attitudes. Sometimes, those laws stick around for a surprisingly long time. It wasn’t until 1967 that the Supreme Court struck down anti-miscegenation laws outlawing interracial marriage. (And Alabama kept its law on the state books until 2000, even though it was no longer constitutional.) Similarly, laws mandating segregation were struck down across the country when modern sensibilities recognized them as unjust.

The statute was “born out of a hysteria” in the early 1900s.

But not the Mann Act. Originally motivated by xenophobia, racism and politicians looking for ways to punish consensual “immoral” sex, the law remains a federal tool used to prosecute Combs and many others, including rapper R. Kelly.

While the text of the White Slave Traffic Act doesn’t exclusively protect white women, the statute was “born out of a hysteria” in the early 1900s “that ‘white slavers’ were preying upon young women — coercing them into prostitution through threats, intimidation, and force.” Writing in the Columbia Human Rights Law Review, sex worker activist Lorelei Lee argues the “prototypical ‘white slave’ of early 1900s discourse was a young white girl from a rural area who was lured into prostitution after moving to an urban center and thus being separated from the supervision of her family.”

The sponsors of the Mann Act defined the white slave trade as “the business of securing white women and girls and of selling them outright, or of exploiting them for immoral purposes.” Although the text of the law doesn’t single out white women for protection, the legislative history demonstrates a retrograde motive to protect white women from “interracial sex.”

The text of the law as originally passed in 1910 criminalized knowingly transporting a woman in interstate commerce “for the purpose of prostitution,” but also for the purpose of “debauchery, or any other immoral purpose.” As one can imagine, a lot more purposes were considered “immoral” in 1910, and potentially included — according to the Supreme Court in 1917 — an “interstate trip for the purpose of a sexual affair between two consenting adults.”

Several scandalous prosecutions followed. Arguably the most infamous was the prosecution of the first African American heavyweight boxing champion, Jack Johnson. The federal government prosecuted Johnson under the White Slave Traffic Act for transporting a white woman named Belle Schreiber across state lines. This, despite the fact that Schreiber was an adult and testified that she had consented to the trip.

Johnson was convicted, only to be pardoned posthumously over a century later in 2018 by then-President Donald Trump. (Johnson wasn’t the only high-profile man, Black or white, targeted by federal prosecutors, though. Another famous prosecution was that of Frank Lloyd Wright, accused of transporting a mistress from Wisconsin to Minnesota.)

The “immoral purposes” clause remained in the Mann Act for 75 years, until 1986.

The “immoral purposes” clause remained in the Mann Act for 75 years, until 1986, when Congress amended the statute to remove it, and also to make the statute gender neutral. In its modern incarnation, it applies only when the transportation of the person was for illegal sexual activity — in Combs’ case, prostitution.

Johnson likely could not be prosecuted under the Mann Act today. However, as in 1910, the victim’s consent is still not a defense. Diddy’s defense will likely try to demonstrate that everyone at the alleged “freak offs” and sex parties prosecutors have described in sometimes intense detail were there willingly. But even if that assertion is proven true, it might not be enough to save him.

Two things are probably true: First, seasoned federal prosecutors are likely quite aware of the checkered history of the Mann Act, including its alternate name. Second, you’ll never hear any of them call it that. And that’s a good thing. The revised version of the Mann Act has utility in the modern era. Human trafficking is a legitimate concern in 2024, as opposed to the manufactured “white girl slavery” panic of the early 1900s that inspired the original act. Perhaps this is a law that truly can be repurposed, despite its questionable origins.

Danny Cevallos

Danny Cevallos is an MSNBC legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the U.S. Virgin Islands at the law firms of Cevallos & Wong in Pennsylvania and Edelman & Edelman in New York, where he is of counsel.