One of the peculiarities of the US Constitution is that
when written, the founding fathers seemed more concerned with the procedures government
agencies can use when enforcing laws than in the content of the laws
themselves. Consequently, unless free
speech or the “right to bear arms” are infringed upon, governments can write
any damned fool law they want, no matter how unfair and discriminatory it might
be. For example, civil forfeiture laws
are in place that allow confiscation of private property based only on a
suspicion that it is associated with criminal activity. No proof is needed, and the individuals
involved are presumed guilty until they manage to sue the government and prove
their innocence. Disturbing laws are produced
and generate enough public outrage that they are no longer enforced. But they are often neither repealed nor ruled
unconstitutional, living on waiting for circumstances to change again to where
some political wing will wish to reimplement them.
Scott W. Stern was a Yale student who stumbled upon a
forgotten period in US history when “social hygiene” laws were used predominately
to incarcerate women who were deemed a threat to society. Stern recorded what he learned in his book The Trials of Nina McCall: Sex, Surveillance, and the Decades-Long Government Plan to Imprison "Promiscuous" Women.
Several reviews of Stern’s work are available to describe
what he discovered. Heather Ann Thompson
produced An Enduring Shame for the New York Review of Books, and Kim Kelly
provided A Forgotten War on Women for
The New Republic.
The story begins when the US thrust itself into the war
in Europe in 1917. It had to quickly
provide a large number of troops for a type of war with which it was
unfamiliar. Social scientists stepped in
to provide assistance. One gave
intelligence tests to the soldiers in hopes of filtering out men who were so
dumb as to be a threat to their units. What
the tests indicated was that the average intelligence of an army recruit was just barely above that of a moron. Needless to say, the army did not send the
majority of troops back home and managed to participate in the war
successfully.
However, there was another concern raised that was more
concrete and more observable. It was
known that sexually transmitted diseases (STDs) or as they were known then,
STIs (sexually transmitted infections) were common among troops in Europe. With more than a million men on the move to
various training camps and being shipped overseas, it was thought important that
this force not be incapacitated by STIs.
Normally, one imagines females being hidden in cellars or closets for
protection when the military comes to town, but this concern turned that logic
on its head and decided that it was the army’s healthy men that needed
protection from promiscuous women.
Thompson provides this perspective.
“At the turn of the century,
when antibiotics had yet to be discovered, syphilis and gonorrhea were rampant
in American cities. Notably, concern among reformers and government officials
over venereal diseases (as sexually transmitted infections—STIs—were called at
the time) was fueled by a more general rise in white anxiety over changing
ethnic and racial demographics across the nation: 14.5 million people
immigrated to the US between 1900 and 1920, and half a million
African-Americans moved to northern cities from the South during World War I.”
“Governmental and reformer
concern with venereal diseases escalated dramatically upon America’s entry into
World War I, when the sexual health of soldiers became a military priority.
Many thousands were infected as they socialized in cities where they were stationed
before heading to the front, which resulted in the dismissal of over 10,000 men
and countless lost hours of work. Recasting venereal disease as a national
security issue led to the creation in the late 1910s of several laws that came
to be known as the American Plan.”
This “American Plan” is not to be confused with
strategies employers used in the 1920s to foil unionization, an activity it deemed
to be “un-American.”
“What began as a local effort to
reduce prostitution around military bases quickly expanded. Federal agents
divided the nation into ten districts within which paid supervisors and field
representatives were “to investigate the presence of alcohol, prostitution, and
general female promiscuity in a given area.” Should investigators discover
women they considered likely to have an STI, they had the legal authority
to examine them, quarantine them indefinitely, and subject them to medical treatments
that were thought to be a “magic bullet” but were known to be extremely painful
and carry terrible side effects. At the time, Stern writes, ‘no effective
treatment existed for syphilis or gonorrhea.’ This practice ‘went on for
decades’—well after the supposed need to protect soldiers in both World War I
and World War II passed—and incredibly, ‘the age listed for a first “offense”
or “delinquency” was often as low as seven’.”
Stern, while still a student at Yale, uncovered this old notice apparently provided to women
who had been arrested in San Francisco.
“This decades-long initiative to
‘reform’ poor women in the name of protecting the public was made possible by
the strong support of well-respected female reformers like Jessie Binford, by
the substantial funding of John D. Rockefeller Jr. and other well-known
philanthropists, by the aggressive enforcement of J. Edgar Hoover, and by the
deep conviction of jurists such as Earl Warren that the American Plan was
necessary for national security.”
“Stern is entirely right to
concentrate on the underappreciated damage that the plan did to poor women
across the country. The program, he shows, was never really about venereal
disease—it was an effort to clean up the streets and police the behavior of
women. He recounts how local law enforcement used the American Plan to ‘commit
girls between the ages of ten and seventeen’ for ‘frequent[ing] saloons,’ or ‘lounging
upon the public streets,’ or ‘attend[ing] any public dance, skating rink or
show’ without a parent’s permission, but never boys.”
We must turn to Kim Kelly’s account for appropriately
outraged comments.
“Sex workers were the prime
targets, but so was any woman deemed ‘suspicious’—which at that time could mean
anything from being seen in the company of a soldier to eating alone in a
restaurant. As the program became more firmly rooted within the legal system,
with undercover agents from ASHA (American Social Hygiene Association) acting
as its enforcers, a stark reality became apparent: Any woman, at any time,
could legally be arrested, sexually assaulted, and hauled off to jail with no
trial, no lawyer, and no idea when she’d be released. Those who were imprisoned
in detention hospitals were subjected to involuntary medical examinations, inhumane
living conditions, and treatments for gonorrhea and syphilis. Unfortunately, at
that point, the most common ‘cure’ for these diseases was a strict regimen of
continuous doses of mercury and arsenic, toxic chemicals which poisoned these
women’s bodies while doing absolutely nothing to cure their ills.”
“The ideas at the heart of the
program have, however, proved remarkably resilient. Its tendrils of influence
crept into the Tuskegee Syphilis Study, Japanese internment camps, and the
responses to the AIDS epidemic, and helped to lay the groundwork for the
current mass incarceration crisis. As Stern has uncovered, the same Civilian
Conservation Corps (CCC) camps that were later used to imprison Americans of
Japanese and German descent, prisoners of war, and conscientious objectors during
World War II originally functioned as ‘concentration camps’ for women
incarcerated under the American Plan.”
Stern used the details of Nina McCall’s life to describe
what these laws could do to an individual woman. When Nina was eighteen years old she was
spotted by a woman, Ida Peck, who was hired to seek out “suspicious”
women. She lived in a small town in Michigan
that was hardly a den of iniquity, but it had a railroad station on a line that
transported servicemen off to war. These
men had to be protected from eighteen-year-old girls. Nina was directed to show up at a doctor’s
office, that of Dr. Carney, for an exam, even though she claimed she couldn’t
possibly have a sexually transmitted disease.
“Within hours she had been given
a rough and painful gynecological exam, diagnosed with gonorrhea, and informed
that she now had two choices: she could either have a placard affixed to the
door of her home warning the public that she was diseased and quarantined, or
she could check into a local hospital where she would have to stay until she
was fully cured. Despite her fervent insistence that it simply wasn’t possible
for her to be infected, Nina chose detention over the prospect of bringing
shame on her mother’s house.”
While in detention she was additionally diagnosed as have
syphilis as well. The injections she
received caused intense pain, caused her hair and teeth to begin to fall out,
and risked her life. According to Stern:
“….[they] caused, among other
things, throbbing pain, kidney damage, inflammation or ulceration of the mouth,
and terrible skin rashes….It could [also] stunt growth, affect the memory and
basic mental functioning, bring about deafness or blindness, and result in
death.”
After three months she was finally released, a marked
woman in the small town. Yet she
continued to be harassed by the authorities.
“She was required, according to
Peck, to continue to undergo treatment (the dreaded mercury injections) even
though she had been released. According to Carney, they hadn’t been giving her
the right kind of mercury, and she needed a new regimen. Should she refuse to
comply, Nina was told, she would be locked up again.”
Once she began to recover from a series of injections she
would be called back for another series.
After a year of this abuse she sued Peck and Carney. She lost her case initially, but then won it
on appeal. It was a victory for her, but
a pyrrhic victory for women in general.
Kelly provides this perspective.
“Nina McCall’s wasn’t a
particularly special case, and even her fight for justice wasn’t altogether
unheard of. Nina stood out to Stern, both because of her sheer audacity and
because the Michigan state archives happened to have kept detailed records of
her case. In 1921, she took her case against those who had wronged her all the
way to the Michigan Supreme Court and won. The court decided that Carney had
erred in his treatment of her, because he had no reasonable grounds for
suspicion that she had been infected; but that if he had, his actions would
have been perfectly acceptable. Her victory proved bittersweet: The ruling—known
as Rock v. Carney—went
on to provide the justification for decades more abuses. The ASHA [American
Social Hygiene Association] used it to bolster the right ‘of the health officer
to quarantine persons suffering with the venereal disease in an infectious
state who constitute a menace to the public health’.”
Thompson describes the American Plan programs as a “method
of maintaining the racial and economic status quo in the face of demographic
and political disruption.” She agrees
with Stern that the attempt to maintain this status quo still informs public
policy today although the laws used to justify it have changed over time.
“When we see the American Plan
not in isolation, but rather as a part of a long history—from slavery in the
1800s to mass incarceration in the 2000s—Stern’s book is not merely the story
of one women’s fight against injustice. His research exposes both the insidious
ways in which calls for ‘public safety’ soon come to justify the curtailment of
rights, and the extent to which today’s most destructive carceral apparatus has
its basis in fear on the part of the powerful. Race, class, and gender
profiling inform which citizens today are policed and imprisoned. The same
factors determined who was surveilled and locked away under the American Plan.”
Let us finish with Kelly’s perspective on what this
history means.
“None of the three federal laws
passed in 1917, 1918, and 1919 have ever been struck down in appeals court or
repealed; they remain on the books in various forms today, and the toxic
attitudes they enabled continue to impact women in America today….When public
officials detained a number of HIV-positive individuals in the 1980s and 1990s
(many of them sex workers), the ghost of the American Plan reared its head once
more; one court decision from 1990 directly cited a 1919 case that declared the
quarantine of a woman infected with gonorrhea a ‘reasonable and proper’ action.
Everything old is new again.”
“The truths revealed in this
book are truly shocking, and even more so because they are so little known. The
culture of silence that has impacted sex workers for so long has finally begun
to dissipate, but potent dangers remain. More than 200,000 women are currently
incarcerated, and represent the fastest-growing segment of the prison
population; up to 70 percent of women behind bars are or have been involved in the
commercial sex industry. Women are still arrested on false pretenses, simply
for how they look or present, or for carrying condoms in their purses; sex
workers—particularly those who are trans women of color—are extremely vulnerable to
police brutality and criminal justice abuses. Women like Nina McCall….fought
against a system that saw them as less than human. One hopes the fact that more
authors are now working to tell those stories means that more people will fight
back.”
The interested reader might find the following articles
informative:
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