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Legal Issues in the Mark Foley Investigation:
The FBI is investigating whether Congressman Mark Foley violated federal law in his sexually explicit IMs and e-mail communications with House pages over the last few years. The case actually brings up a bunch of very interesting legal questions, and I wanted to explain the issues for readers who are following the story in the news.

  The basic law at issue here is 18 U.S.C. § 2422(b), sometimes known as the federal enticement statute, which is part of the Victorian-era legislation known as the Mann Act. The basic point of the statute is making it a crime to use a means of interstate commerce to try to persuade a minor to engage in an illegal sexual act. Here's the key text:
Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.
  Using IM or e-mail clearly counts as using a facility or means of interstate or foreign commerce. See, e.g., United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006). And at least based on the e-mails we know about, it looks like Foley didn't actually succeed in persuading any minors to engage in sexual activity. So the question is whether Foley made an attempt to persuade, induce, or entice a minor to engage in an illegal sexual act.

  What does this mean? Well, the answer is a little technical. It turns out that in criminal law, attempting to do something means more than just trying to do it. Different courts use different tests, but all distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the "substantial step" test for attempt borroewed from the Model Penal Code. Under this test, a person is guilty of an attempt to commit a crime "if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." United States v. Hsu, 155 F.3d 189, 202-203, 203 n. 19 (3d Cir. 1998) (quoting Model Penal Code § 5.01(1)(c)). As you might guess, this often requires difficult line-drawing; whether conduct is a "substantial step" or not can be mushy, and generally is a question for the jury that courts are reluctant to second-guess.

  The requirement that the sexual act be "activity for which any person can be charged with a criminal offense" generally incorporates the state law where the suspect expects the illegal sexual act will occur. State laws can vary, which can make it important to figure out the state in which the suspect was trying to have the offense occur. For example, in United States v. Patten, 397 F.3d 1100 (8th Cir. 2005), a police officer in West Fargo, North Dakota, posed in an Internet chat room as a 16 year old girl. The defendant visited the chat room from his home in nearby Moorhead, Minnesota. The officer persuaded Patten to come to a grocery store in West Fargo, where the defendant was arrested. The law of North Dakota and Minnesota differ in a critical respect: in Minnesota, consensual sexual conduct between an adult man and a 16 year-old girl is legal, whereas the same conduct is illegal in North Dakota. The defendant argued that there was insufficient evidence that he had intended to engage in sexual activity in North Dakota, and therefore had not violated the federal statute. According to the defendant, he had planned to engage in the illegal activity in Minnesota, where it would have been legal. The Eighth Circuit affirmed the conviction, ruling that there was sufficient evidence from the facts of the case for a reasonable juror to conclude that the defendant intended to persuade the girl to engage in sexual activity in North Dakota. See id. at 1103-04.

  So where does that bring us? Putting the pieces together, the legal question is whether Foley's communications were a substantial step in a course of conduct planned to culminate in persuading a minor to commit a sexual act that would be illegal where the act was expected to occur.

  Would a jury convict on the basis of that test? I haven't done more than scan quickly through some of the published e-mails and IMs, and I'm not sure all of the communications have been made public, so I don't know whether I think a jury should convict. And of course we would need to know what state we're talking about to answer the question fully. But whether a jury would convict may depend at least in part on where any case would be brought, which depends on where venue is present.

  In an 18 U.S.C. § 2422 case, venue is proper in "any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). See United States v. Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). Although I don't know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice. I would guess that prosecutors are looking for IMs and e-mails sent to minors when they were back home, far from Washington DC, perhaps in socially conservative states or districts where jurors would be particularly likely to see Foley's e-mails as the danergous products of a sexual predator. If they decide to prosecute, the feds probably would bring the case in that state or district.

Related Posts (on one page):

  1. Prosecution of Foley:
  2. More on the Foley Legal Issues:
  3. Legal Issues in the Mark Foley Investigation:
Mark Field (mail):
According to Glenn Greenwald, the age of consent in DC is 16. I believe all the pages were over 16.

There are other statutes involved also; Greenwald discusses them.
10.3.2006 7:28pm
A.S.:
In an 18 U.S.C. § 2422 case, venue is proper in "any district in which such offense was begun, continued, or completed."

Hmmm. Why would you think the relevant enticing conduct was "begun", "continued" or "completed" in the page's home state? All of the relevant conduct was by Foley, and thus occurred in DC, no? Or does the conduct occur in the page's state merely because the page received the message in that state, even though Foley was actually in DC and was never physically in the page's state?

Although I don't know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice

I guess my question is, why do we think that a prosecution in the page's state would be permitted under the statute?
10.3.2006 8:05pm
A.S.:
To add to the above, are we supposed to hypothesize that Foley would have gone to the page's state? At least in the North Dakota case you cite, the perpetrator actually went to North Dakota. That's not an element here.
10.3.2006 8:10pm
logicnazi (mail) (www):
The Patten case you cite seems really troubling to me. Perhaps there is more information that we didn't recieve but why isn't there at least reasonable doubt that the guy planned to bring the girl back to somewhere it was legal to have sex? Is this a case of emotional reaction overriding the law?

Anyway I was hoping you would post on this topic because I'm really curious whether any congresional privleges protect Foley from prosecution. I always thought the constitution or at least the law gave congressmen special protections in their communications.
10.3.2006 8:14pm
Charlie (Colorado) (mail):
Oh, now that's an interesting question. From the radio babble today, it appears as if at least one of the vile and evil sexual perverted pedophiliac queer immoral IM conversations was done from the floor. Doesn't the Constitution (the Speech and Debate Clause) protect him?
10.3.2006 8:38pm
elChato (mail):
So I wonder if 2422(b) is violated by "IM sex" as ABC claims Foley had while waiting to vote.

As for speech and debate, it would be really hard to see how IM sex constitutes "acting in the sphere of legitimate legislative activity."
10.3.2006 9:09pm
neurodoc:
Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so

In the Patten, the "whoever" would have been Patten. Who, though, was the "individual" Patten attempted to persuade, entice, or coerce to engage in sexual activity with him, that sexual activity such that it would have constituted a criminal offense? When he was online, Patten may have thought he was communicating with a 16-year-old girl. And had there in fact been a 16-year-old girl, then Patten's attempt to engage in sexual activity with her might have fallen with the ambit of 18 U.S.C. § 2422. But it wasn't a 16-year-old girl, it was a police officer, someone over the age of consent.

Am I missing something elementary in criminal law here? It was enough that Patten thought, albeit mistakenly, there was a 16-year-old girl involved? (If you pick up what you think is a gun and attempt to fire it at another individual, you may be guilty of attempted murder though the "gun" turns out to be a cigarette lighter that only looks like a gun and cannot fire a bullet or any other projectile.) Patten's was an "attempt" for purposes of 18 U.S.C. § 2422, though no one less than 18 years of age, nor less than 16 years of age, male or female, was involved? Do these sting efforts ever fail because nowhere in the picture is there an underage individual?
10.3.2006 9:31pm
OrinKerr:
A.S., I think that because the cases say that. It's hornbook law, and is used by the feds all the time.
10.3.2006 9:34pm
Lostingotham (mail):
I believe the speech and debate clause protect speech directed at Congress (i.e. as part of a debate), rather than speech that happens to originate from the floor of the House.

I find it interesting, though that the age of the recipient[s] of the risque IM messages has not been revealed. We know that the recipient of the chatty but otherwise innocuous emails was 16, but there's been no mention of the age of the recipients of the IMs. Most people have quite naturally conflated the two.

My hunch is that the people who broke the story know how old the IM interlocutor was, and further that if he were under 18 they'd be screaming the fact on every channel. That leads me to surmise that the risque stuff was reserved for (nominally) adult readers. If I'm right, Foley's messages were certainly icky, but almost certainly not criminal.
10.3.2006 10:32pm
David M. Nieporent (www):
Mark,

I read that post the other day. Neither of the statutes Greenwald cites are relevant, as far as I can tell from a quick perusal. (He found two statutes which defined "minor," but so what?) The Adam Walsh Act -- besides not applying ex post facto, is about sex offender registration, not defining substantive crimes. And the other statute is about the production of child pornography.
10.3.2006 10:45pm
percuriam:
I am willing to bet a jury would have no problems convicting Foley (at least here in my red state) based on the icky factor. Getting past the Rule 29 is the more apporpriate question.
10.3.2006 11:15pm
Anderson (mail) (www):
why isn't there at least reasonable doubt that the guy planned to bring the girl back to somewhere it was legal to have sex?

Based on my sporadic reading of appellate decisions, "reasonable doubt" is a joke. More seasoned attorneys may differ.
10.3.2006 11:34pm
Huh:
Isn't it possible (even probable) that Foley sent at least some messages from Florida? Seems like Florida law could have some implications as well.
10.3.2006 11:45pm
OrinKerr:
why isn't there at least reasonable doubt that the guy planned to bring the girl back to somewhere it was legal to have sex?

That's a jury issue. The appellate court only assesses the sufficiency of the evidence.
10.3.2006 11:51pm
Mark Field (mail):

I read that post the other day. Neither of the statutes Greenwald cites are relevant, as far as I can tell from a quick perusal.


I probably should have made my point more explicit (no pun intended). Prof. Kerr noted that "the requirement that the sexual act be "activity for which any person can be charged with a criminal offense" generally incorporates the state law where the suspect expects the illegal sexual act will occur." Greenwald's post shows that the DC age of consent is 16; assuming the pages were all at least 16 and that the relevant physical acts, if any, took place there, Foley could not be guilty under the incitement clause of the Mann Act.
10.4.2006 12:05am
cathyf:
Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so...
In the IMs which I've seen, the only sexual activity which Foley is attempting to persuade his interlocutor to engage in is masturbation. If masturbation is a criminal offense, there's a whole lotta folks in heap big trouble!
10.4.2006 12:35am
Red Paul (mail):
Masturbation is illegal if a flying squirrel is involved.
10.4.2006 1:39am
patrick neid (mail):
now to the next step. if in fact future IM's appear to constitute law breaking on Foley's part is there any criminal risk for the individual or group that has knowingly held these records for release at a future date for personal profit? ie political blackmail of a sort.
10.4.2006 1:42am
Scroop Moth (mail):
Masturbation becomes lewd conduct in the context of observation and presence with a minor.

An interesting question is whether IMs, which are only textual, can count as an "observed presence", in other words, do they make the conduct lewd? IMs do create an experience of sexuality, but only through text. IMs create no physical analog such as a picture or transmission or voice. There is no scene or activity, except people typing at a keyboard. How real is that? Society no longer considers text to be pornographic. If Foley met an underage "page" in time and space and solicited an act of masturbation, he commited a crime, in blue state or red state. On the other hand, IMs are nearly fiction. Foley can't know whether his interlocutor is a minor or an employee of Dateline. He dosn't need to know, because the computer enables pretense.

Even if Foley met his boys for a sexual purpose, that purpose may not have been prohibited sexual activity. He obviously enjoyed talking about sex, setting up occasions for it, obtaining agreements to do it, perhaps even being in a situation that could enable it, and so forth. But all that could feed desire without actually leading to particular conduct. Maybe Foley's intent stopped with the "substantial step" itself. The set-up could have been the culmination of his conduct. Otherwise, Foley would have been trying to get sexual contact with pages all these years without actually succeeding. I'm not saying Foley is innocent, maybe just that the law doesn't define his conduct.
10.4.2006 2:16am
Harry Eagar (mail):
I was surprised to see Professor Kerr refer to the Mann Act as 'Victorian,' as I didn't think it was that old, nor particularly 'Victorian' in outlook.

A quick check shows that it was passed in 1910, making it just barely Edwardian. Not until 1917 was it broadened to enticing across state lines to have sex for fun, as opposed to for money.
10.4.2006 2:26am
Randy R. (mail):
Justice Scalia would like to criminalize masturbation, BTW. See his dissent in Lawrence v. Texas. Romeesh Ponnuru refused to answer whether he thought masturbation should be illegal when questioned. (I don't have a cite for that, I just recall Andrew Sullivan writing about it on his website. Don't shoot me if my memory isn't totally correct!).

I agree, if it's outlawed, it would pretty much through the entire population into jail....Except for the holier-than-thou types, of course.
10.4.2006 2:40am
LotharoftheHillPeople:
Randy R. writes:

<i>Justice Scalia would like to criminalize masturbation, BTW. See his dissent in Lawrence v. Texas.</i>

That's just wrong. Scalia was talking about whether Kennedy's opinion would make it unconstitutional to punish masturbation. He was not actually advocating the criminalization of masturbation.
10.4.2006 3:30am
kentuckyliz (mail) (www):
Harry Eagar said about the Mann Act:

Not until 1917 was it broadened to enticing across state lines to have sex for fun, as opposed to for money.


Which is the problematic aspect for Patten; in trying to argue that he was going to bring the girl to Minnesota where the sex would be legal, the act of taking her across state lines would still be illegal.

In most states, the age of consent is 16, rarely higher, and sometimes as young as 14. Some states distinguish between heterosexual and homosexual age of consent and set the latter higher, at age 18.

A summary chart can be found at www.ageofconsent.com. Useful for informational purposes, but don't visit the discussion boards, it's full of ephebophile cherrypickers trading strategies. The homosexual age of consent law was repealed...so it's likely the same age as hetero age of consent.

Now to the law that is the main subject of this post.


to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so


What criminal sexual activity are we talking about here? No one has been able to tell me.

Pedophilia is an incorrect term in this case. Pedophilia refers to pre-pubescent children. Ephebophilia refers to post-pubescent children. I am not sure it really matters in this case, until it is shown that someone under 16 years old was targeted. When you get your driver's license, you get your license to love.

These pages *participated* in these conversations and didn't have to. They cynically played along because they have political aspirations and are trying to build their contacts in Washington. They learned early to ignore other politician's foibles in a backscratching agreement. They are very sophisticated and don't seem damaged at all to me.

If Foley waited until the young people were no longer pages, does that make a difference? They aren't quasi-employees any more.

Where are the gay rights activists? This is typical grooming behavior to "help" young men discover their gay identity. The entire country is calling it wrong. They want gay adult men to be Boy Scout leaders on overnight camping trips with boys...so why aren't they calling out on the rampant homophobia going on here? The FFF is being called crazy, sick, evil. (FFF = Foley the Fag from Florida...an acronym the pages used.)

Of course, I am outraged, but I have to ask questions because it just seems like we're playing fast and loose with our outrage. More of a lynch mob than anything.
10.4.2006 7:50am
Cornellian (mail):
Where are the gay rights activists? This is typical grooming behavior to "help" young men discover their gay identity. The entire country is calling it wrong. They want gay adult men to be Boy Scout leaders on overnight camping trips with boys...so why aren't they calling out on the rampant homophobia going on here?

Hardly "typical" anymore than Gary Condit's affair with Shandra Levy was "typical" of straight Congressmen. There are two and a half factors that are upsetting people, 1) Foley was in a position of power over the pages and 2) the youth of the pages with the "half factor" being the age difference because it's related to (2). If Foley had been sending explicit text messages to a 45 year old guy who didn't work for Congress, few people would have cared. Neither of those factors constitutes homophobia. Even Tony Blankley of the Washtington Times said he'd feel the same way had it involved female 16 year old pages.
10.4.2006 9:22am
DWPittelli (mail):
It seems that the most likely venue for Foley's sex acts (if there were any) was or would have been Washington DC, where the age of consent is 16. So unless there's some communication concerning meeting up somewhere else (most likely Florida, where "A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony ... "sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another...") I don't see how this could go to trial.
10.4.2006 9:25am
DWPittelli (mail):
But what about the media reports that Foley may be prosecuted under laws which he himself championed, specifically covering internet predators? Is there a seperate such law, and does it define a crime whenever the victim is under 18, regardless of state age-of-consent laws? Anyone have a link or title for said law?
10.4.2006 9:28am
Sandi (mail):
In order to convict this guy of anything, wouldn't there have to be proof that the correspondance was from Foley? This isn't a defense of him mind you. Has Foley copped to both the emails and IMs? Emails are easily traceable, but IMs are a different matter altogether. Do you know if the IMs have categorically been traced physically to Foley and his computers?
10.4.2006 9:40am
DJR:
"Age of consent" laws that allow sex with 16- and 17-year-olds generally are limited to those who are within a few years of that age. Foley would not qualify. For instance, in Florida, Foley's home state:

794.05 Unlawful sexual activity with certain minors.--


(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, "sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.



As for why nobody has mentioned the age of the IM recipients, it might be because of laws like this:


794.03 Unlawful to publish or broadcast information identifying sexual offense victim.--No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. Such identifying information is confidential and exempt from the provisions of s. 119.07(1). An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
10.4.2006 10:04am
sk (mail):
"Using IM or e-mail clearly counts as using a facility or means of interstate or foreign commerce."

Frankly, I'm not terribly interested in Foley. He did something wrong, he resigned, if he broke the law he'll be charged, the rest is just noise.

But I am interested in my quote above. Why is communicating by using email 'clearly' a means of interstate or foreign commerce? It doesn't appear to me to have anything to do with interstate or foreign commerce, unless the law has effectively redefined the word 'commerce.'

You had a post a few days ago about picketting at funerals that became a debate over 1st Amendment limits. I'd be interested how calling using email to communicate has been redefined to not be 'speech' but 'commerce' (where, as I mentioned in the previous post, nude dancing has been defined as 'speech' but political campaigning isn't, etc etc).

If you want to avoid the meta-issue, fine. But really-how is IM'ing using my phone, or typing using email, plausibly defined as 'commerce' (and thus regulatable in a way that 'speech' isn't)?

Sk
10.4.2006 10:22am
sk (mail):
"794.03 Unlawful to publish or broadcast information identifying sexual offense victim.--No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. Such identifying information is confidential and exempt from the provisions of s. 119.07(1). An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083."

Interesting. What do 1st Amendment absolutists have to say about this?

Sk
10.4.2006 10:24am
DJR:
SK: In first year constitutional law, you learn that "commerce" means moving pretty much anything, including information, across state lines, and also includes the things that are moved and the ways in which they are moved. Using the internet to send email or instant messages is commerce in dozens of ways.
10.4.2006 10:46am
Amacfarl (mail):
I read this morning that he claims he was drunk when he sent many of the messages to the boy(s). I don't remember too much from my crim law class, but doesn't drunkeness negate the specific intent required for attempt?
10.4.2006 11:01am
sk (mail):
DJR-
That's really hilarious. So newspapers that are sold across state lines are limitable by 'commerce' laws, then?

Let's see. 'Speech' includes nude dancing, picketting at funerals, burning flags, throwing pies in people's faces, wearing obscene jackets in court rooms.

'Speech' does not include political communication immediately before elections (because its not 'speech,' its 'money'), it does not include emailing or IM'ing other people-if those emails/IMs travel across state lines (its 'commerce')(presumably, if an email or IM remains within a state line, it isn't 'commerce,' then?), or newspapers or magazines sold across state lines (again, 'commerce').

And we're supposed to be grateful that decisions like this are made by lawyers and judges rather than the common people...

Freedom of speech really doesn't exist, does it...

Sk
10.4.2006 11:04am
Houston Lawyer:
Suppose the boy was travelling from DC to Florida during the IM string. Does that mean that Foley could be prosecuted in whichever state the boy travelled through that happened to have the highest age of consent? Foley could probably truthfully say that he didn't know where the boy was when he IM'd him. Would that be a defense?
10.4.2006 11:21am
Randy R. (mail):
Lothar: Scalia was talking about whether Kennedy's opinion would make it unconstitutional to punish masturbation. He was not actually advocating the criminalization of masturbation."

And since no jurisdiction currently punishes masturbation, and neither of the litigants raised the issue, why exactly would Scalia raise it, if not for the fact that he would like someday to have it criminalized?
10.4.2006 1:11pm
private defender:
Houston Lawyer:

Ignorance of age is not a defense to statutory rape in any state that I'm aware of, and mistake of law is likewise never a defense.

One thing that I haven't seen anyone mention: The statute criminalizes, among other things, "attempting to entice." Therefore, he doesn't need to take a substantial step toward a sexual rendesvous; rather, he just needs to take a substantial step towards enticement. Any invitation over IM would likely fall under that statute.
10.4.2006 1:16pm
Randy R. (mail):
"Where are the gay rights activists? This is typical grooming behavior to "help" young men discover their gay identity. The entire country is calling it wrong. They want gay adult men to be Boy Scout leaders on overnight camping trips with boys...so why aren't they calling out on the rampant homophobia going on here? "

The gay activists have been united in condemning Foley's behavior.
This is NOT 'typical grooming'. To say so implies that we somehow recruit young men into being gay. Believe me, no one had to recruit me, or anyone else I know.

AS for the Boy Scouts, the case was brought by James Dale, whom even the Boy Scouts admitted in a court of law had only the highest recommendations and no one had ever had anything but the highest praise.

What your comment really goes to is the assumption that all gay men are sexual predators on young men. This is not the place to debate that issue other than to say it simply isn't true.
10.4.2006 1:18pm
Randy R. (mail):
A sad fact of life: There are heterosexual men who are predators on girls. Maybe we should prevent all straight men from spending time with girls?

Pennsylvania schoolhouse killer Charles Carl Roberts IV told his wife he molested young relatives 20 years ago and was dreaming about molesting children again, police said Tuesday.

Investigators talked to relatives and analyzed suicide notes as they tried to determine what made Roberts barricade himself inside the tiny Amish school, tying up girls and shooting them - five fatally - before killing himself Monday.

Pennsylvania State Police Commissioner Jeffrey Miller said Roberts may have targeted the school for its girl students and - given various items found in the school - intended to molest the children. Roberts brought KY Jelly lubricant to the schoolhouse where the assault occurred, but there is no evidence that the victims were sexually assaulted in any way, Miller said.

"It's very possible that he intended to victimize these children in many ways prior to executing them and killing himself," Miller said.
10.4.2006 1:30pm
plunge (mail):
From what I understand, given the new internet law, it is now possible for one man to go to jail for chatting up someone under 18 with sex talk, and another man to be completely in the clear after having ACTUAL SEX with the SAME under 18 person (due to the differing ages of consent between state and federal law). Surely that's sort of a perverse situation in the law, no?
10.4.2006 1:44pm
Mr L:
A sad fact of life: There are heterosexual men who are predators on girls. Maybe we should prevent all straight men from spending time with girls?

If you want to play that retarded game, then I'd be happy to point out that the ratio of gay men to straight is far smaller than the ratio of molested boys to girls.

And I do think there's a double standard at work here; if Foley had been chatting up barely legals he'd be tarred as a dirty old man, but you wouldn't have people demanding he be imprisoned. Of course, the people demanding jail tend to be Democrats, so it must just be politics.
10.4.2006 2:01pm
Jonathan L. Katz (mail) (www):
FYI, I discussed this issue today on Federal News Radio (at http://media.bonnint.net/wtop/4/432/43260.wma ) and on the Underdog Blog (below).

Also, thanks (or no thanks) in part to Mr. Foley's support, the minimum penalty under 18 U.S.C. § 2422(b) was raised this past summer from five years to ten years. The harsher minimum penalty should only apply to actions taking place after the harsher minimum penalty took effect.

http://markskatz.com/CrimeLaw.htm#4

October 4, 2006

Talking about Mark Foley: Marks &Katz gives the radio audience a criminal defense perspective.

House Speaker Dennis Hastert recently called for the United States attorney general to conduct a criminal investigation of former Congressmember Mark Foley.

What is the legitimate purpose of this investigation? Even if the courts do not give First Amendment protection to soliciting for criminal activity, thus far Mr. Foley's reported alleged communications with pages seem to be along the lines of First Amendment-protected fantasy talk. I suppose the feds will investigate, among other things, whether Mr. Foley has violated 18 U.S.C. § 2422(b), which currently provides:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Just three months ago, Mr. Foley's cached Congressional website (saved on our website here) credited Mr. Foley, then co-chair of the Missing and Exploited Children Caucus, with authoring the above increase to ten years (from five years) as the minimum penalty under 18 U.S.C. § 2422(b), and several other amendments to the Adam Walsh Child Safety Act:

This morning, I gave my criminal defense lawyer's view about Mr. Foley’s predicament, on Federal News Radio, http://federalnewsradio.com/?nid=317&sid=882248. The nine-minute podcast is here: http://media.bonnint.net/wtop/4/432/43260.wma . Among other things, I say that Mr. Foley should not be treated any differently because of who he is, but that federal prosecutors likely will not want to look hypocritical by being seen as going too lightly on him. His available defenses include that he was engaging in mere fantasy, that nobody took him up on fulfilling his fantasies, and that his alleged comments do not meet the requirements of 18 U.S.C. § 2422(b) nor of other criminal laws.

If the feds obtain a search warrant for Mr. Foley's computer and his Internet accounts, they may look for other sexual communications with minors and child pornography, which might open an additional can of worms.

Thanks to lawyer Larry Sutter, Senior Counsel at Penthouse Media Group, Inc. -- who is a fellow member of the First Amendment Lawyers Association -- for brainstorming with me in preparation for this interview. Larry is insightful, funny, and selfless in responding when I have a question. Jon Katz.
10.4.2006 2:18pm
jrose:
Jon Katz,

What about Orin's point that Foley intended to engage in sex in a place where the act would have been legal? Isn't that a good defense to 18 U.S.C § 2422(b)?
10.4.2006 2:35pm
non_Lawyer:

"To say so implies that we somehow recruit young men into being gay."


Randy, I've got six letters for you: NAMBLA.
Yeah, I know, I know, they are not representative of most gays. But, if you're going to use such extreme examples as the Amish murderer, let's not pretend people like NAMBLA don't exist, eh? Fair's fair.
10.4.2006 2:38pm
Arbusto Spectrum (mail):

. Of course, the people demanding jail tend to be Democrats, so it must just be politics.


When did Dennis Hastert switch to the Dems? It seems he is one of the most vocal advocates of a thorough criminal investigation. Talk about retarded....
10.4.2006 2:50pm
Sebastian Holsclaw (mail):


In an 18 U.S.C. § 2422 case, venue is proper in "any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). See United States v. Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). Although I don't know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice.



Just because venue is proper for prosecution doesn't resolve the choice of law issue. If the 'illegal' act takes place in D.C. and is legal in D.C., D.C. law should apply. This is admittedly why attempt law is such a mess.
10.4.2006 3:08pm
ak47pundit (www):
sk-

In one case I was tangentially involved in (there was a civil case and a criminal case on the same matter and I was involved in the civil case), The US Attorney and FBI in their warrant held that as Party A talked with Party B via AOL email, and as AOL's servers were based in Virginia it was enough to count as interstate communication which allowed for jurisdiction and basis for a federal crime for violation of some ifederal statutes for what was in the emails.

The kicker: A and B were next door neighbors in the same state - Michigan.

Basically, as IM goes almost undoubtedly goes to an out-of-DC server, they can pull you into federal violations for use of the facility or means of interstate commerce.
10.4.2006 4:26pm
jrose:
ak47pundit -

Your point about interstate commerce applying between two next-door nieghbors communicating over AOL is well taken. However, a violation of 18 U.S.C. § 2422 still requires that such interstate commerce include persuading (enticing, etc.) an under 18-year old to "engage in prostitution or any sexual activity for which any person can be charged with a criminal offense"

Since DC's age of consent is 16, if Foley solicited a 16-year old for sex while both were online in DC, wouldn't there be no criminal offense and hence no violation of 18 U.S.C. § 2422?
10.4.2006 4:52pm
Randy R. (mail):
NAMBLA exists. Child molesters exist. Murderers exist. Straight men who molest boys and girls exist. Gay men who molest boys and girls exist. It isn't retarded to acknowledge this fact.

What is retarded is to paint all or most members of a group with the crimes of a few. FBI states conclusively show that most child molesters are straight heterosexual men, even when they molest boys.

So: If you don't want to play this retarded game -- and I certainly don't -- then don't bring it up. Someone did, and it needs to be refuted. The truth is that the vast majority of gay men do not molest any children at all. Some people don't like to accept that fact because they want to find a way to dislike gay men. Too bad.
10.4.2006 5:11pm
Randy R. (mail):
NAMBLA exists. Child molesters exist. Murderers exist. Straight men who molest boys and girls exist. Gay men who molest boys and girls exist. It isn't retarded to acknowledge this fact.

What is retarded is to paint all or most members of a group with the crimes of a few. FBI states conclusively show that most child molesters are straight heterosexual men, even when they molest boys.

So: If you don't want to play this retarded game -- and I certainly don't -- then don't bring it up. Someone did, and it needs to be refuted. The truth is that the vast majority of gay men do not molest any children at all. Some people don't like to accept that fact because they want to find a way to dislike gay men. Too bad.
10.4.2006 5:11pm
Randy R. (mail):
Oops. Sorry for the double post.

I was going to point out that in the scandal that involves the Catholic priests, about half the members of the survivor's network are women who were molested by priests when they were young.
10.4.2006 5:13pm
Mr L:
I was going to point out that in the scandal that involves the Catholic priests, about half the members of the survivor's network are women who were molested by priests when they were young.

And here today we have Foley's lawyer giving a press conference saying that his client 'wants the public to know' that he was molested by a priest. I'm not sure what he's trying to imply with that.
10.4.2006 6:13pm
Caliban Darklock (www):
@ Randy:

Explain why, when I go to a gay club, they try really really hard to convince me that I most certainly *am* gay but don't want to admit it.

I like hanging out with gay people, because they're fun. They have wonderful parties. They're friendly and uninhibited and flamboyant, just like I am. They like to get really drunk and take off their clothes and dance on the tables and sing disco songs, just like I do. I'm sure there are many gays who aren't like this, but I don't care; there are plenty who are, and I like to hang out with them.

But I don't want to have sex with them. I'm not disgusted at the idea; it simply doesn't interest me. I don't really understand how anyone can look at a man and want to have sex with him.

So on what planet am I gay? And since I do indeed count myself as a heterosexual (because I enjoy and pursue sex with women... which is a lot easier when most of the other men at the party are gay), on what planet do gays not actively recruit from the heterosexual community?
10.4.2006 6:37pm
lucia (mail) (www):
Explain why, when I go to a gay club, they try really really hard to convince me that I most certainly *am* gay but don't want to admit it.


Maybe because you are in a gay bar? And some men are really, really aggressive and really don't want to take no for an answer?

I believe some men who visit gay bars aren't gay. That's because I also know women sometimes go to bars just to have a drink and not to be hit on -- even though some heterosexual men in bars have insisted otherwise.
10.4.2006 7:20pm
Randy R. (mail):
Yup. And besides, at gay bars, the primary focus there is to pick up another guy for sex. You must be pretty cute, or else they wouldn't be hitting on you like that!

In Gay World, everyone is gay unless proven otherwise. It's just one of our things, and it's fun and helps us through our humdrum lives. Certainly, we day dream that ANY gorgeous man must be gay, because it lights our fantasies. Like drag shows, It's not to be taken seriously. Sure we love drag queens, but few would ever take one home for the night.

Your testimony is living proof, however, that being gay is not a matter of choice. Despite being in the very heart of gay culture, you have not given up your heterosexuality to 'choose' to be gay. Apparently, even after such aggressive 'recrruting' we have failed to turn you!

Congratulations to you for not being afraid, though. Many straight men are too insecure about their sexuality to go within a mile of a gay bar, and the fact that you can go there and have fun, and withstand the worst of it (Many gay men hate gay bars for these reasons), means you have a good head on your shoulders. And no doubt a pretty one, too.
10.4.2006 8:10pm
CLS (mail) (www):
I read all the text messages I could find. And there were several references to the fact that there was an intention to wait until the teen turned 18 before meeting for dinner and maybe more. The only place they had proximity to one another was in DC and age of consent is 16 and it does not apply only if you are a few years older, you could be 50 years older. There as no attempt to get the boy to travel anywhere where this would be illegal. And for those who want the work situation to factor in it seems that the messages in question were after the teen was no longer working in DC not while working there. So it doesn't apply. And of course the teen didn't work for Foley but for the US congress as a whole.

What he did might be slimy but I'm not at all convinced it was illegal. There was no attempt to push for a physical relationship (though in DC such a relationship would be legal). There was some brief mentions where the teen said he wanted to wait until he was 18. He was 17 at the time. And they planned to meet in DC after his 18th birthday.
10.4.2006 9:45pm
Randy R. (mail):
When I was young and beautiful (a long, long time ago!) I was often approached by women who tried to convert me to heterosexuality. I could kiss them, but that's as far as I got. Fondling breasts? No way. Going further down there? Major yuck!

Despite their best attempts, they were never able to convert me to heterosexuality. I'm a better person for it.

So you see, Caliban, recruitment works both ways -- people just want to screw the person they are attracted to, and will say anything to get the deed accomplished. Don't take it personally.
10.4.2006 10:22pm
Randy R. (mail):
Plunge:: From what I understand, given the new internet law, it is now possible for one man to go to jail for chatting up someone under 18 with sex talk, and another man to be completely in the clear after having ACTUAL SEX with the SAME under 18 person (due to the differing ages of consent between state and federal law). Surely that's sort of a perverse situation in the law, no?

Not at all Plunge. It makes perfect sense. In America, sex is considered dirty. You can kill people in the most horrendous ways in a movie, and it gets a PG rating. Show real love between two people, and it R rated, or worse.

So if you think or talk about sex, you are dirty old man. If you actually HAVE sex, you are to be envied, because most people who talk about sex don't actually have it. So that part is okey-doke.

It's like walking on coals. It hurst more to think about it than to actually do it. And so punishment falls accordingly.

(IF any idiot thinks I'm serious in this post, then you are a bigger doofus that I even imagined, okay?)
10.4.2006 11:00pm
Caliban Darklock (www):
@ Randy:
> Your testimony is living proof, however,
> that being gay is not a matter of choice.

If the gay community really believed that, wouldn't they just accept that I'm not gay?

See, it COULD be a choice. Face it, I've had sex with women that didn't interest me. There's no good reason why I couldn't do the same with men.

That's what people forget about homosexuality: it CAN be chosen. You can be coerced and cajoled into gay sex. It might take a few more drinks, but it's entirely possible. That's why some gay men end up in the emergency room having shot glasses removed from their colons: get the straight guy too drunk, and he might shove just about anything in there.

The gay community just doesn't want to recognise what portion of their membership is there by choice. (Or by coercion: if this and that are true, then you must be gay and you have no say in the matter.) Once you're in the community, you face heavy pressure to join the club of people who have been gay since birth. In fact, it's completely unacceptable NOT to be gay since birth, because this is the one and only excuse that most gay men's parents can accept: that there is no choice and nobody ever chooses to be gay.

Once the wall comes down and Bruce's parents see that Harry actively chose to be gay, you give them false hope that Bruce might actively choose to be straight. And he could, if he wanted to, he just... well, doesn't want to.

The reality is that Bruce's parents need to STFU and let him lead the life he wants, and Bruce needs to wake up and smell the concrete - because the fact is, he leads this life because he wants it.

That's the truth, but it's harder for Bruce's parents (and most parents of gays) to deal with it, so we perpetuate this lie that all gays are gay from birth and helpless to change. That's bullshit. You're not helpless. I'm not helpless. We choose what we want and it guides what we do.

Which is why I hold Foley responsible for misconduct. He chose to have those IM conversations and send those emails. It doesn't matter whether he chose to think the pages were sexy, and in fact I don't think any of us choose what we find arousing. What cannot be denied is that he *chose* to have these conversations, and if there was any actual sex he *chose* for that sex to take place. I hold him responsible for the choices, not the personality traits that led him to make them.
10.5.2006 5:07pm
Caliban Darklock (www):
@ Randy:
> recruitment works both ways

But the straight community has never denied that they want gays to be straight. It's not that gays try to recruit, it's that gays *also* vigorously deny doing it.
10.5.2006 5:21pm
lucia (mail) (www):
If the gay community really believed that, wouldn't they just accept that I'm not gay?


Caliban, have you presented any evidence to suggest the gay community doesn't accept that you are not gay? All you said was you visit gay bars, guys hit on you using lines like "you know you really want it" or some such.

Guys do that to me in bars. I don't conclude that men as a whole are all convinced I want each and every one!
10.6.2006 7:41pm
NotWaff (mail):
Who would ever think that the sexual antics of a gay politician would be spin into a political attack on the Republican Party? The reality is that Foley does not represent Republicans - he represents the gays. Gay organizations encourage young teens to be sexually active and to experiment with gay sex, even with older men. Gay literature encourages and glamorizes gay sex between teens and older men. Gay organizations lobby to redefine the "age of consent" so gay men can be having sex with younger teens. Yes, Mark Foley represents a bigger problem - the sexploitation of our young by the gay agenda.
10.15.2006 3:09am