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determined to punish commercial dealings in obscene articles, but that are unable effectively to suppress such activities because of restrictions on State jurisdiction and power. Under this part of section 1842, it must be shown that the material is obscene under both the definition in this section, and under the applicable State law. While this may occasionally prove onerous, the refined constitutional definition of obscenity supplied by the Court in Miller v. California, will, of necessity, be closely adhered to in most State jurisdictions so that Federal and State standards will be quite similar if not identical.

With respect to the community to which resort should be made in determining whether particular matter is obscene, the Committee intends that the issue be left for resolution by the Federal courts.82

The conduct in this offense is, in paragraph (1), disseminating material, and, in paragraph (2), commercially disseminating material. Since no culpability level is specifically prescribed, the applicable state of mind that must be shown is at least "knowing," i.e., that the defendant was aware of the nature of his actions.83

The element that the material is "obscene material" is an existing circumstance. As no culpability standard is set forth in this section, the applicable state of mind that must be proved is, at a minimum, "reckless," i.e.. that the defendant was aware of but disregarded the risk that the circumstance existed.84 The Committee believes that this standard in effect incorporates the constitutional scienter requirement established in Hamling v. United States, supra, that a person must know the contents of the materials and their character and nature.85 For, without an awareness of the nature of the materials, it cannot be said that a person has consciously disregarded the risk that they may be obsecene.

The remaining elements, e.g., that the dissemination was to a minor or was in violation of State law, are also existing circumstances. The requisite culpability is at least "reckless," except as to the violation of State law aspect, for which no mental state need be established.86 4. Defenses

Subsection (c) provides that it is an affirmative defense to a prosecution under this section that dissemination of the material was restricted to (1) a person associated with an institution of higher learning, either as a member of the faculty or as an enrolled student, teaching or pursuing a course of study to which such material is pertinent, or (2) a person whose receipt of such material was authorized in writing by a licensed psychiatrist, psychologist, or medical practitioner.

These defenses are essentially self-explanatory. They are of course only meant to apply to bona fide situations and not where a sham course is offered or where a person connives with a doctor or psy

82 Although a "district-wide" community may be constitutionally permissible the Committee observes that a Federal judicial district would not seem at least in some areas of the country, to be a viable "community" for these purposes. Accordingly, it may be more appropriate to have reference to a municipal, county, State, or other community than to apply "district" standards.

83 See sections 303(b) (1) and 302 (b) (1).

84 See sections 303(b) (2) and 302 (c) (1).

Supra note 60. See also United States v. Sulaiman, 490 F. 2d 78 (5th Cir. 1974), cert. denied, U.S.- (Oct. 25, 1974). The Committee intends that a person may acqurie an awareness of the risk that materials are obscene not only through viewing them but also by being told of their general nature and content.

S8 See section 303 (d) (1) (A).

Section 1843.

chologist to obtain written permission to see such material for purposes unrelated to professional treatment or legitimate research. The designation of the defenses as "affirmative" means that the defendant will bear the burden of proving the elements of the defense by a preponderance of the evidence.87

5. Jurisdiction

There is Federal jurisdiction over an offense in this section in three circumstances. The first is if the offense is committed within the special jurisdiction of the United States. This is new. The special jurisdiction is defined in section 203 and includes the special maritime, special territorial, and special aircraft jurisdictions. In essence, the places covered are the high seas and various vessels thereon, Federal enclaves, and certain aircraft while in flight. The extension of Federal cognizance in these areas is clearly warranted and also has the effect of eliminating the current need to rely on diverse State laws via the mechanism of the Assimilative Crimes Act, 18 U.S.C. 13, or its counterpart in the subject bill, section 1863 (Violating State or Local Law in an Enclave).

The second and third circumstances are if the United States mail or a facility in interstate or foreign commerce 88 is used in the commission of the offense,89 and if the material is moved across a State or United States boundary. These jurisdictional bases carry forward the present purview of 18 U.S.C. 1461-1465.

6. Grading

An offense under this section is graded as a Class E felony (up to three years in prison). This maintains the offense at a felony level but somewhat reduces the maximum penalty as compared with present law (five years).

SECTION 1843. CONDUCTING A PROSTITUTION BUSINESS

1. In General

Prostitution was not a common law offense but today is generally prohibited by statutes directed at women who perform sexual acts for hire.90

Current Federal statutes in the prostitution field are generally aimed at penalizing the use of interstate commerce to facilitate prostitution. Their thrust, however, is jurisdictional rather than substantive and by relying on the use of interstate commerce to define the offense, the statutes are defective both in reaching behavior which there is no real Federal interest in punishing (e.g., transporting a woman in interstate commerce for the purpose of prostitution or debauchery), while failing to reach some activities of organized crime (e.g., controlling an interstate network of call girl services or a chain of houses of prostitution).91

Section 1843, by contrast, focuses on the operation of a prostitution business, directing penalties primarily at the persons responsible for its operation. The prostitute is thus not subject to Federal prosecution

87 See the definition of "affirmative defense" in section 111.

88 Such facilities would include intrastate broadcasts over facilities that also operate in interstate commerce. Compare Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966). 89 The term "commission of the offense" is defined in section 111.

90 See 2 Wharton, Criminal Law and Procedure, § 758 (1957 ed., Supp. 1974).

91 See Working Papers, pp. 1191-1192.

unless also engaged in activities such as procuring patrons or recruiting participants in the business. Furthermore, the section removes the sexual bias sometimes found in State laws and uses neuter terminology throughout, thus making clear that the offense is not limited to members of a single sex.

2. Present Federal Law

The principal Federal statutes are the White Slave Traffic Act (18 U.S.C. 2421 et seq.), and the Travel Act (18 U.S.C. 1952), discussed in connection with section 1841, supra.

18 U.S.C. 2421 makes it an offense punishable by up to five years in prison to knowingly transport in interstate or foreign commerce (or in the District of Columbia) any woman or girl "for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to engage in any other immoral practice."

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It has been held that an expectation of pecuniary gain is not an element of this offense (thus extending its reach to situations when a man takes his paramour across a State line in a tryst),93 nor need the interstate transportation be by common carrier.94 A persistent problem has been in determining whether the interstate transportation was for one of the prohibited purposes. The courts have held that merely taking a prostitute on an innocent vacation does not violate this section; rather it must be shown that a "dominant" (but not the sole) purpose of the travel was for prostitution, debauchery, or other immorality.95 The focus of the statute on interstate transportation has also created other difficulties in terms of defining numbers of offenses. Thus it has been held that the simultaneous transportation of two women in interstate commerce constitutes only a single offense," but a round trip may constitute two distinct interstate journeys.

97

The term "immoral purpose" has been held to be limited by the principle of ejusdem generis to the same class of conduct as prostitution or debauchery but within that class has been given a broad interpretation so as to reach, for example, the transportation across State lines of plural wives by members of the Mormon faith believing in polygamy.98

The offense is complete upon the crossing of State boundaries irrespective of whether any prostitution or debauchery later occurs or whether the purpose of the transporter to do so is abandoned.99

The offense under 18 U.S.C. 2421 may be committed by the transportation of one's wife for prostitution purposes; if it is, the Supreme Court has determined that the wife may testify against her husband at his trial notwithstanding the spousal privilege, since she is the "victim" of the offense even if she was not coerced.10 100

92 The section also proscribes the knowing purchase of any ticket to be used by a girl or woman for one of the purposes described above.

93 See Caminetti v. United States, 242 U.S. 470 (1917); Working Papers, p. 1198.

94 Wilson v. United States, 232 U.S. 563 (1914).

95 See Mortensen v. United States, 322 U.S. 369 (1944); see also United States v. Lomas, 440 F.2d 335 (7th Cir.), cert. denied, 404 U.S. 842 (1971); United States v. Tyler, 424 F.2d 510 (10th Cir.), cert. denied, 400, 839 (1970).

96 See Bell v. United States, 349 U.S. 81 (1955).

See Nelms v. United States, 291 F. 2d 390 (4th Cir. 1961).

98 See Cleveland v. United States, 329 U.S. 14 (1946).

Wilson v. United States, supra note 94.

100 See Wyatt v. United States, 362 U.S. 525 (1960). However, the ordinary privilege may be invoked by the husband where the offense charged is his transportation of another woman. See Hawkins v. United States, 358 U.S. 74 (1958). But see 8 U.S.C. 1328, abolishing the privilege generally for the crime of importing aliens for prostitution purposes.

18 U.S.C. 2422, a companion statute, penalizes whoever knowingly persuades, induces, entices, or coerces any woman or girl to travel in interstate or foreign commerce (or in the District of Columbia) for the purpose of prostitution, debauchery, or other immoral purpose, or who with the intent that such woman or girl shall engage in prostitution, debauchery, etc., knowingly causes her to be carried as a passenger in interstate or foreign commerce (or in the District of Columbia) by any common carrier. The penalty is the same as that prescribed under section 2421.

18 U.S.C. 2423 provides a penalty of up to ten years' imprisonment for whoever knowingly persuades, induces, entices, etc., any woman or girl who has not attained her eighteenth birthday to travel by common carrier in interstate or foreign commerce (or in the District of Columbia), with intent that she be induced or coerced to engage in prostitution, debauchery, or other immoral practice.

18 U.S.C. 1952, the Travel Act, is a more accurate expression of the Federal interest in prostitution activities. It punishes by up to five years in prison whoever travels in interstate or foreign commerce or uses any facility thereof, with intent to (1) distribute the proceeds of any unlawful activity. (2) commit any crime of violence to further any unlawful activity, or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, etc., of any unlawful activity, and who thereafter performs or attempts to perform any of the acts set forth in subparagraphs (1), (2), and (3). The term "unlawful activity" is defined to mean, inter alia, any business enterprise involving prostitution in violation of the laws of the State in which they are committed or the laws of the United States.

The general discussion of the elements under this statute in connection with section 1841 (Engaging in a Gambling Business) is applicable here. It is significant that, although confined to "enterprises"and thus somewhat tailored to large scale businesses of the type commonly associated with organized crime in which the Federal Government has a substantial interest-this section is defective in that it relies on State law for the determination of prostitution offenses. Since prostitution was not a common law offense, the prohibitions vary widely among the States. For example, some States proscribe prostitution itself while others punish only the promotion or facilitation of prostitution activities; in many States the customers of prostitutes are deemed to be criminals whereas in others they are not. Thus reliance on State law injects an undesirable measure of diversity in the conduct proscribed and tends to weaken the effort to differentiate between acts supportive of an organized prostitution business and individual ventures into professional prostitution.101

In addition to the foregoing principal statutes, existing Federal law also reaches prostitution in Federal enclaves via the provisions of the Assimilative Crimes Act, 18 U.S.C. 13, which incorporates the penalty and definition of the offense from the law of the State where the enclave is situated. Such "assimilation" is subject to much of the same criticism as above with regard to the lack of uniformity thereby created in the Federal Government's role in proscribing prostitution. Finally, Federal law explicitly prohibits acts of prostitution in one area of special Federal interest. 18 U.S.C. 1384 provides that whoever,

101 See Working Papers, pp. 1192-1193.

within such reasonable distance of any military or naval camp, fort, post, yard, base, cantonment, training, or mobilization place as the appropriate Secretary of one of the armed forces shall designate and publish, "engages in prostitution or aids or abets prostitution or procures or solicits for purposes of prostitution, or keeps or sets up a house of ill fame, brothel, or bawdy house, or receives any person for purposes of lewdness, assignation or prostitution into any vehicle, conveyance, place, structure, or building or leases or rents or contracts to rent or lease any vehicle, etc., knowing or with good reason to know that it is intended to be used for any of purposes herein prohibited" is guilty of a misdemeanor punishable by up to one year in prison. No reported cases under this statute apparently exist, although it has been stated that repression of prostitution has proved beneficial to the maintenance and supervision of military bases.102

3. The Offense

Subsection (a) provides that a person is guilty of an offense if he "owns, controls, manages, supervises, directs, finances, procures patrons for, or recruits participants in, a prostitution business." "Prostitution business" is defined as a business in which a person controls, manages, supervises, or directs the prostitution of another person; and prostitution is defined as engaging in a sexual act, as defined in section 1636 (a), as consideration for anything of pecuniary value.103

The terms "owns, controls, manages, supervises, directs, [and] finances" parallel those in section 1841 (Engaging in a Gambling Business), which in turn are derived from 18 U.S.C. 1955. Unlike in the gambling statute, however, where only businesses of a certain size or volume are covered, the Committee determined to follow existing law in reaching a prostitution business of any size.104 The remaining terms "procures patrons for, or recruits participants in"—are designed to reach other activities substantially facilitating the operation of the business.105

The unlawful sexual acts referred to in section 1636 (a) include homosexual as well as heterosexual activity by members of either sex. These elements are discussed in more detail in connection with section 1636.

The National Commission included a special provision 106 designed to preserve the existing case law exception permitting testimony by a victim-spouse to be received against her or his marital partner in a prostitution prosecution. The Committee intends that the case law be preserved but notes that this result will be effectively achieved by enactment of Rule 501 of the Federal Rules of Evidence. Accordingly, there is no need for such a separate evidentiary provision in this Code. The conduct in this section is owning, controlling, etc., a business. Since no culpability standard is specifically designated, the applicable state of mind that must be proved is at least "knowing," i.e., that the offender was aware of the nature of his actions. The fact

102 See id. at 1195 n.9.

103 The term "anything of pecuniary value" is defined in section 111 to include any direct or indirect gain or advantage in the form of money or its equivalent, or any other property or service valued in excess of $100.

104 See 18 U.S.C. 1952.

105 The concept of procuring patrons is intended to reach the activities. e.g., of a pimp or "madam" who obtains customers for the prostitutes he or she controls, but not to cover the on-the-street solicitations of a customer by a prostitute.

108 See Final Report, § 1848.

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