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By James J. Barney, Associate Professor of Legal Studies, School of Security and Global Studies, American Military University
On February 25, a woman who claims she was once a human trafficking victim in Nevada and other states filed a lawsuit in a federal court in Nevada challenging that state’s ability to regulate prostitution.
In the complaint, the woman alleges that Nevada violated her civil rights. The complaint cites the Mann Act of 1910 as well as the Victims of Trafficking and Violence Protection Act of 2000 because Nevada allows brothels to operate in certain counties. The complaint does not name any Nevada brothel as a defendant in the lawsuit. In April, a brothel owner filed a motion to intervene to defend Nevada’s laws and Nevada filed a motion to dismiss the lawsuit.
Some commentators speculated that the woman’s lawsuit could directly end Nevada’s brothel system. If her lawsuit was just an attempt to shed light on the serious problem of human trafficking, it achieved its goal. The lawsuit also sparked a tremendous discussion about the links between the sex trade and human trafficking.
Plaintiff Alleges Federal Law Preempts Nevada’s Prostitution Laws
The lawsuit’s central legal argument is that the Mann Act, which made it illegal to transport people across state lines for illicit purposes, and the Victims of Trafficking and Violence Protection Act (TVPA) preempt Nevada’s state law on intrastate prostitution. However, these legal arguments will ultimately fail because they ignore the robust statutory history of both acts as well as the Constitution’s Tenth Amendment.
Thus, barring the unlikely reinterpretation of both federal preemption law and Tenth Amendment jurisprudence by the United States Supreme Court, the district court judge probably will dismiss the suit when the judge reaches the merits of the plaintiff’s claims.
The crux of the complaint is the allegation that Nevada cannot regulate intrastate prostitution because that would violate both the Mann Act and the Victims of Trafficking and Violence Protection Act.
The complaint further alleges that these two federal laws in combination bar states like Nevada from regulating the sale of sex within their borders. That’s because sex workers may have traveled or been forced to travel between states or from overseas. The complaint also states that Nevada has violated the civil liberties of women like the plaintiff because the state allows brothels to operate under state law but in violation of federal law.
From a close reading of the complaint, it is not clear when the alleged human trafficking took place at the brothel in the complaint. The exact date is highly significant because the alleged harm may have occurred outside the applicable statute of limitations period.
For example, the plaintiff brought her cause of actions pursuant to 42 U.S.C. §1983, which does not include a statute of limitations. Instead, it refers to the applicable state law statute of limitations dealing with personal injuries. Due to the vagueness of the complaint regarding when the alleged trafficking took place, a judge will likely require the plaintiff to replead or will dismiss her complaint even before addressing its substantive merits.
Nevada’s Grounds for Dismissal of the Lawsuit
At this point, it is not clear whether the Nevada complaint can survive an initial screening. However, the complaint raises some novel legal issues related to federal preemption and the scope of the Tenth Amendment as well as the statutory history of both the Mann Act and the TVPA.
Despite the existence of the Constitution’s supremacy clause, federal law can preempt state law only in a few limited situations. First, federal law can trump state law if the latter directly conflicts with federal law. Second, federal law can preempt state law if Congress intended to preempt state law in a certain area and only if Congress possessed the power to do so.
The Tenth Amendment, which prevents Congress from stripping the states of their police powers, states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, to evaluate the plaintiff’s arguments, we need to examine the Nevada and federal statutes in question and their statutory history.
The plaintiff argues that the Mann Act and the TVPA preempt state law and bar states from enacting regulatory schemes that allow intrastate prostitution because 1) Nevada law is in direct conflict with federal law or 2) Congress intended to preempt Nevada’s law.
Nevada argues that the plaintiff’s preemption arguments do not have support in the historical record; that the relief the plaintiff seeks violates the Tenth Amendment; also, that Congress rejected the abolitionist view on prostitution articulated in the complaint. On all three arguments, Nevada has existing law and statutory history on its side.
In recent years, the Mann Act has been the focus of increased inquiry. Historians like Jessica R. Pliley in Policing Sexuality: The Mann Act and the Making of the FBI have explored the origins and effects of the Mann Act in vivid detail. When Congress enacted the Mann Act in 1910, Pliley argues, the legislators did not seek to preempt state law by criminalizing intrastate prostitution even if the women crossed state lines or traveled internationally to engage in intrastate prostitution.
In the years since enactment of the Mann Act, Progressive Era reformers advocated for the passage of hundreds of state laws to criminalize intrastate prostitution and associated acts. They did so, in large part, because they recognized that the Mann Act allowed the states to:
- Criminalize (make prostitution a crime)
- Decriminalize (not address prostitution in the criminal code)
- Legalize (make prostitution legal under the criminal code) or
- Regulate intrastate prostitution under the police powers of the Tenth Amendment.
Instead of preempting state law on the intrastate sale of commercialized sex, the Mann Act made it a federal crime to engage in the interstate or international transportation of women for immoral purposes. Congress amended the Mann Act several times to make the law gender neutral, to address child pornography, and to clarify some of its vague language.
However, the amendments never addressed Nevada’s brothel system. The lack of congressional action during the amendment processes strongly indicates that Congress either did not seek to preempt Nevada’s regulatory scheme or Congress did not view Nevada’s treatment of prostitution as conflicting with the amended Mann Act.
These facts again tend to undermine any argument that Congress sought to preempt Nevada’s laws regulating prostitution or that Congress viewed Nevada’s laws as conflicting with federal law when it enacted and then amended the Mann Act several times.
Likewise, the TVPA provides human trafficking victims with a private cause of action against traffickers. The law also criminalizes several practices associated with human trafficking, including traveling overseas to engage in sex with minors.
The TVPA did not mandate how individual states like Nevada or foreign countries should deal with prostitution. When Congress enacted the TVPA, Nevada’s brothel system had been in existence for decades. If Congress believed that it had the constitutional power to end regulated prostitution in Nevada, Congress might have done so when it enacted the law.
The lack of congressional action to address Nevada’s brothel system is additional evidence that Congress did not intend to preempt Nevada’s regulatory power to address intrastate prostitution when it enacted the TVPA.
In its motion to dismiss, Nevada also argues that, in enacting both the TVPA and the Mann Act, Congress recognized that under the Tenth Amendment Nevada and other states retained the power to regulate prostitution within their borders under the anti-commandeering doctrine.
The Supreme Court addressed the anti-commandeering doctrine in Murphy v NCAA. In that case the Court addressed an attempt by New Jersey to decriminalize sports betting. The Court ruled that Congress could not require states or state officials to pass laws by or under the direction of a federal mandate.
At its core the lawsuit asks the federal court to strip Nevada and other states of their power to either regulate or decriminalize intrastate prostitution. But the plaintiff’s request conflicts with clear guidance from Murphy, which held that Congress could not strip the states of their power to decriminalize intrastate behavior.
This Case Will Not Resolve All Legal Issues Related to Nevada’s Brothel System
While the lawsuit directly challenges only Nevada’s ability to regulate intrastate prostitution, it also indirectly raises various laws about the interpretation and application of the Mann Act and the TVPA.
For example, it is unclear whether lawfully operating brothels in Nevada could be subject to criminal or civil liability under the TVPA. Likewise, it is not clear whether they could be subject to criminal liability for violating the Mann Act.
The Current Lawsuit Is the First Battle in Campaign to Close Nevada’s Brothels
Even if Nevada or the brothels were to prevail in the defense of the state’s laws regulating prostitution, such a victory might ultimately prove to be pyrrhic for the brothels.
In recent months, several state legislators, under pressure from anti-trafficking advocates, have expressed a desire to repeal Nevada’s laws that allow regulated prostitution. Other state legislators have suggested the enactment of stricter state laws to deal with human trafficking that might subject the brothels to criminal or civil liability.
While these legislative proposals have failed so far, activists have pledged to end legalized prostitution in Nevada. Thus, the recent lawsuit may only be the first battle in a multiyear and multipronged campaign to close brothels and end legal prostitution in Nevada.
About the Author: James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including one in American foreign policy. He is currently completing his Ph.D. in history. As a Ph.D. student, James has conducted extensive research into the Progressive-era reform movements. To contact the author, please email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.