Because it is transportation for an immoral purpose that the law forbids, a businessman was charged with a violation of the Mann Act when, after a few days' vacation in Florida, he became lonely and wired a girlfriend, with whom he had previous relations, to join him there. His wire included the cost of air transportation; she caught the next flight to Miami Beach, and they spent the rest of his vacation there together. At vacation's end, they had a quarrel, but being a gentleman he saw to it that she was returned safely home. Subsequently, on her testimony, the man was charged with and convicted of violating the Mann Act.
Because the intent to commit an immoral act is all that is required, the man could have been convicted of violating the Mann Act even if the girl had refused to join him in Florida. Even if he had not paid for her transportation, he could have been found guilty, because the law specifies that to "induce" or "entice" is sufficient—thus, theoretically, the mere invitation, with the expectation of sexual intimacy, would have been enough.
Holmes notes, "If you make arrangements with a young lady to spend the night in a hotel room in another state, and you and she travel there in separate cars, at different times, you have nevertheless broken the law if you 'persuaded, induced, enticed, or coerced' her to go. (Money, incidentally, is readily recognized as a powerful 'persuader,' etc.) On the other hand, if the whole thing was her idea in the first place, there is no violation. Nor can a woman be convicted under the Mann Act for transporting herself across a state line, though she can be held liable for transporting another woman. There is no section in the Act which makes it a federal crime for either a man or a woman to transport a man across a state line for immoral purposes."
For those unfortunate enough to live in the District of Columbia, matters are worse still. In our nation's capital, you don't even have to cross a state line to violate the Act—all you have to do transport, with the necessary immoral intent, of course. "If you are taking your girl home in a Washington taxi and the possibility of spending the night with her flits through your mind," observes Holmes, "you have just violated the Mann Act. If you walk her home, however, you're safe—but don't get gallant and carry her into her apartment. (To be really and truly safe, you can do no better than follow the dictum of the Court of Appeals for the District of Columbia, which recently held that 'about the only place where sexual intercourse can take place without running athwart the local law is in an anchored balloon.')"
The most notorious prosecution under the Mann Act was that of famous comedian Charlie Chaplin, when the government charged him with the violation for taking a cross-country train trip with a comely young "protégé"; she later proved the wisdom of Congreve's 17th century adage about the fury of a woman scorned when she became the state's star witness against poor Charlie. He escaped the Mann Act charges, but she nailed him with a paternity suit, even though medical evidence, held inadmissible by the court, proved conclusively that he was not the father of her child.
A popular song of a few years back musically endorsed the pleasures of "love on a Greyhound bus." Enjoyable they may be, but if the bus crosses any state lines, you'll be wise to get out and walk.
In our society, adultery is generally held to be a worse sin than fornication. This is reflected in our state statutes which tend to treat this behavior as a crime warranting more severe punishment.
Adultery is forbidden in the Ten Commandments, which play an important part in both the Christian and Jewish religions. It doesn't matter that the original Judaic injunction against adultery was primarily concerned with property rights (when a wife was considered her husband's possession); nor that the admonition historically applied only to women (it was not thought improper in olden times for married men to have sexual intercourse with other than their wives). The antisexualism of the Middle Ages imbued adultery with its present sexual significance and broadened its prohibition to include male and female alike (though even today society is more tolerant of the adulterous husband than wife).
Statutes forbidding fornication and adultery have no historical basis in common law—traditionally this behavior has been dealt with by the ecclesiastical court; consistent with its origin as a violation of property, however, common law has permitted the innocent spouse to claim damages through civil action.
Fornication is easily defined as illicit sexual intercourse between two unmarried individuals, but a legal definition of adultery is not quite so simple. What distinguishes adultery from fornication? The married state of one or both of the partners in illicit coitus is the determining factor, but beyond that the definition is variously applied. Suppose a married man and a married woman were to have intercourse with a single woman and a single man; which of the four would be guilty of adultery and which of fornication? Some would hold that all four—married and unmarried—would be adulterous, since one member of each relationship was married; others would consider that the three of the four had committed adultery—excluding only the single female who had intercourse with the married man; still others would say that two of the four had committed adultery, though they would not necessarily agree on which two—some suggesting that only the pair who were married were guilty of adultery and some stating that the married woman and her lover were the adulterous ones; and still others would argue that one of the four had committed adultery—excluding all but the married woman. Here we find a differentiation of definition dependent not only upon the marital state, but also the sex of the participants in illicit coitus—varied viewpoints that have their origin, of course, in the fact that prohibitions of adultery originally applied only to married women.
On this confusion, Ploscowe writes, "The Roman law, which influenced much of our thinking on this question, differentiated between the illicit sexual intercourse of a married man and that of a married woman. A married man might have sexual intercourse with a single woman and not be guilty of adultery or any other crime. A married woman was guilty of adultery whenever she had sexual intercourse with a man who was not her husband, whether that man was married to someone else or was single. In such a case, both the married woman and the paramour were guilty of adultery.
"These Roman-law conceptions may be encountered in common-law views on adultery. While adultery was not generally regarded as a crime at common law, it might still be on the subject of a civil suit for damages.... If an Englishman wanted a divorce, he had to bring an action first for criminal conversation based on the adultery of his wife. Only a husband could bring such an action. A wife could not sue another woman for damages because the latter had made love to her husband. Adultery was therefore defined as common law as at Roman law; the sexual intercourse with another man's wife was adultery.
"Many of our modern criminal statutes on adultery are interpreted in the same way, making sexual intercourse with another man's wife adultery and sexual intercourse by a married man with a single woman fornication or no crime at all. The justification of this distinction between married men and married women, with respect to extramarital sexual intercourse, has come down to us from medieval times and is reiterated by modern cases. For example, in this case of State vs. Armstrong, the court stated: '...the gist of the crime, independently of statutory enactments, is the danger of introducing spurious heirs into a family, whereby a man might be charged with the maintenance of children not his own, and the legitimate offspring be robbed of their lawful inheritance. That an offense which may entail such consequences upon society is much more aggravated in its nature than the simple incontinence of a husband, few can doubt....' "
But Plascowe notes, "If this rationale were adequate, sexual intercourse with a married woman who was unable to bear children should not be adultery. We have been unable to find any judicial decision which makes such an exception to the adultery statute.
"The English ecclesiastical law took an entirely different approach to adultery than the Roman law.... Adultery was defined by the ecclesiastical [court] as 'the inconstancy of married persons, a sin arising out of the marriage relation,' which was equally great whether the offender was male or female...."
This view of adultery was adopted by the early American courts and has also received statutory sanction in many states. For example, in the Massachusetts case of Commonwealth vs. Call, the defendant, a married man, was found guilty of having intercourse with Eliza, a single woman. Call contended that this was adultery, stating in its opinion, "Whatever...may have been the original meaning of the term adultery, it is very obvious that we have in this Commonwealth adopted the definition given to it by the ecclesiastical courts.... We hold the infidelity of the husband as well as that of the wife the highly aggravated offense constituting the crime of adultery."
This religious interpretation of the word is specifically adopted by a number of state statutes; for example, the New York Penal law reads: "Adultery is the sexual intercourse of two persons, either of whom is married to a third person." Under this type of statute, both the man and the woman are guilty of adultery, only if one of the parties (either one) is married.