WEST PALM BEACH, Fla. – Even if former Rep. Mark Foley did not violate federal laws by exchanging sexually explicit Internet communications with underage boys, he still could find himself charged under state statutes.
Federal law generally requires a person to meet, or attempt to meet, a minor for sex before a crime has been committed. But in some states where the Florida Republican communicated with children, attempting to seduce a minor might be enough to bring charges.
Federal prosecutors investigating Foley are examining whether Florida authorities might be better positioned to seek charges against him, according to a senior Justice Department official who spoke Friday on condition of anonymity.
Foley resigned abruptly last week amid reports he exchanged sexually suggestive communications with teenage boys who worked as pages on Capitol Hill. Foley's attorney said Foley never engaged in sexual activity with a minor, but that may not matter in certain states.
E-mails and instant messages released so far indicate Foley communicated with boys in California and Louisiana, and may have initiated those contacts from Washington and Florida. The boys in question were all at least 16 at the time.
Under state law in Florida, where the age of consent is 18, a crime may have been committed if Foley is found to have seduced or attempted to seduce a minor.
However, a reading of the law is subjective, said JoAnn Carrin, spokeswoman for the state attorney general's office.
Carrin said the term "seduce" is "open to interpretation." She declined to elaborate on how Foley's communications may have violated state law.
Jeff Harris, president of the Florida Association of Criminal Defense Lawyers, said the matter may come down to Foley's intent.
"He may have just gone to the precipice of a cliff but not jumped, which means he didn't commit a crime," Harris said. "If he's encouraging a minor to commit a sex act, I think you've crossed a legal line. Anytime you're talking sexually with a minor on a computer, you're flirting with an arrest."
In Louisiana, it is a felony for an adult to engage in sexually explicit Internet communications with anyone under 17, said Mike Johnson, a special agent with the state attorney general's office.
"It just has to be sexual in nature," Johnson said.
In the District of Columbia, the law is more complex.
It is not illegal for an adult to have sexual relations with a person at least 16 years old, so long as that person is not in a position of authority over the minor. But it is illegal to communicate any sexually related materials to a minor, such as magazines or any printed material, which could include Internet messages, said Jack King, spokesman for the National Association of Criminal Defense Lawyers.
The District "doesn't have any Internet-related statutes regarding Internet related sexual conduct," King said.
In California, it is illegal to send sexually suggestive communications to a person under 18, said Sandi Gibbons, a spokeswoman for the Los Angeles County District Attorney's Office.
But Los Angeles criminal defense attorney Mark Geragos said cases are rarely prosecuted if the adult does not at least attempt to meet the child.
"Words alone generally are not going to be enough to prove a crime," Geragos said. "You'd have to have some act in furtherance of the lewd talk."