This came across the ATMP mailing list, copied from the Loving More mailing list. It's a message sent to NASCA member swing clubs on potential implications of the new legal climate.
Pandering statutes are creatures of state law. It takes local interest to cause trouble there. It's unlikely the change in administrations will affect those prosecutions. On the other hand, the federal Mann Act is still on the books. See 18 U.S.C. 2421, 2422. It originally prohibited the transportation of anyone across state lines for immoral purposes, although it has fortunately been amended to limit its definition of immoral purposes to prostitution or "any sexual activity for which any person can be charged with a criminal offense".
This presents some opportunities for a crusading attorney general. If I were looking to cause trouble for swing clubs, I would look for situations where (1) the club had members who crossed state lines, and (2) the club was located in a state where sodomy or adultery was still a crime. But there are defenses. Under the broadest of the two laws, 2422, the government must show that someone "persuades, induces, entices, or coerces" another to cross state lines for the illegal purposes. Under that section, it must be proven that the person who crossed state lines was persuaded by the defendant to do so. For a club owner, it is a thus a defense that s/he did not do anything to urge attendance at their club other than let it be known that the club was there and that newcomers were welcome. In that regard, websites are a lot better than direct mail -- but who uses direct mail to recruit newcomers anyway? It gets riskier if active members on a mailing list are encouraged to attend events by mail.
But that is not the whole story. Under either section, it must be also shown that the defendant had the specific intent that another person cross state lines to commit a sex crime, "before conclusion of interstate journey, and such intent must be the dominant motive of such interstate movement." Mortensen v. United States (1944) 322 US 369, 88 L Ed 1331, 64 S Ct 1037; United States v McConney (1964, CA2 NY) 329 F2d 467. If the traditional definition of swinging, "social interaction for the purpose of recreational sex", is used, a club using that definition could be prosecuted if recreational sex is illegal in the state where it is located, and if it can be proven that the club "persuaded" someone to cross state lines to attend.
So it's important for clubs not to be as sex-focused in their literature as a lot of traditional swing clubs have been. Regardless of how hard-core the club culture is, the literature should always make clear that it is only offering an environment where couples may choose on their own to engage in legal activities, and that the club is not trying to persuade them to do anything sexual at all.
Anytime there is a fear that the authorities are about to cause trouble, it's possible to use an attorney to contact the authorities and, without disclosing any details about who the principals are or where in the jurisdiction the activity is located, state reasonably accurate details about the concept and activity and inquire (1) whether on those facts any violation of law is perceived, and (2) whether a prosecution based on such facts would likely occur. It is helpful to include references to constitutional rights and possible litigation for declaratory judgment. If they don't answer, or don't commit to not prosecuting on the stated facts, you can file a lawsuit for declaratory judgment (which might be successful in getting attorney's fees under 42 U.S.C. 1983). Or you may decide not to sue. Sometimes private assurances can be obtained when written ones can't. Commercial clubs in the lifestyle have always been bigger targets than non-commercial, home-based ones. In ethical terms, it's important for those commercial clubs to do their legal homework. Too often innocent members/customers have been swept up in criminal charges and the clubs tell them they're on their own. They owe reasonable protection to their supporters. One way of doing that is the pre-emptive contact described above. It's also a lot cheaper and less risky than awaiting a bust and prosecution.
It may also help clubs to relax a bit to know that even when the U.S. Attorney General announces a big anti-sex campaign, it doesn't mean anything is really going to happen. Attorney General Edwin Meese tried a crusade against pornography during the Reagan administration and local U.S. attorneys yawned. They had better things to do.
Dick Wilson
NASCA Legal Counsel
Friday, February 2nd, 2001 danlyke@flutterby.com