Disgraced Congressman Mark Foley has serious problems, though he may not have any legal ones.
Sure, he may have resigned when it was discovered he'd been sending sexually explicit messages to teenage boys over the Internet, but consider the legal loopholes. After all, it seems Foley did.
Foley's knowledge of child exploitation law is extensive. The six-term congressman served as co-chair of the House Caucus on Missing and Exploited Children
“How old are you now?” Foley e-mailed a former congressional page living in Louisiana. Since the boy was a former page, Foley knew he was at least 16. But the real question was, when would he turn 18? Being found guilty of lurid computer-based sex talk with someone under 18 in Louisiana might get him thrown in jail for a minimum of two years without the chance for parole — not to mention having to register as a sex offender. Foley might have been cursing the fact that the boy didn't live in Washington, D.C. There, if the boy were at least 17, Foley could have engaged him in smutty dialogue to his heart's content.
During an instant message exchange between Foley and a California teen, Foley writes, “I miss you lots since san diego.” The boy answers, “ya I cant wait til dc.” Foley later adds, “I wish I would have jumped you after dinner in san diego, but I was good.” The truth is, though, Foley likely knew that being “good” in California was essential. If the former page had been under 18, that sex could have cost him a year in jail under California law. Better to hold off until D.C., Foley must have thought. The age of consent there is just 16.
But there's also this tidbit: The two masturbated together before signing off. Surely, that was prosecutable, right? The short answer is, probably not. It's true that engaging in sexually suggestive communications with someone under 18 is illegal in California if done “with the intent, or for the purpose of seducing a minor,” but, as Loyola Law School professor Laurie Levenson observes, “That's often why [police] don't go on these cases because it's hard to prove intent given that the Internet is a world of fantasy.”
And what about the fact that Foley traveled interstate and met with the boy in California? Shouldn't that trigger some sort of federal law? Actually, the U.S. Code does include a provision known as the “enticement statute” that could come into play.
This provision makes it a crime to use a means of interstate commerce (like the Internet) to persuade a minor to have sex in a state where the age of consent would make it illegal (in this case California). Still, there's nothing in the e-mail exchanges to suggest Foley either persuaded or attempted to persuade the boy to have sex in California. In fact, the exchanges suggest the opposite — Foley was making an effort to be “good” there. Moreover, if Foley was in California for other reasons (say, attending a fundraiser, for example) he could argue that he did not travel to California for the purpose of persuading the boy to have sex, but that his visit with the boy was incidental to official business.
Of course, Foley's most lurid online conversation (as far as we know) appears to have taken place while he was in Pensacola, FL. Foley inquires about the former page's penis size and masturbation techniques, and offers some colorful insights of his own. “I always use lotion…” Foley says.
A Florida law makes it a third-degree felony, punishable by up to five years in prison, to transmit “material harmful to minors by electronic device.” The law defines “harmful material” to include descriptions of nudity, sexual conduct, or sexual excitement.” The catch is that the statute also requires lewd messages to be directed toward someone “known by the defendant to be a minor in this state.” If the teen was not in Florida, but instead, was in a jurisdiction that permitted such exchanges, on the face of the statute, Foley would not be criminally liable.
Nevertheless, Foley may have gotten tripped up in an exchange where he discusses plans to ply a visiting teen with alcohol. “We may need to drink at my house so we don't get busted,” Foley writes. If there's evidence Foley did buy alcohol for a teen who was visiting him in Washington D.C., Foley could be charged with “Contributing to the Delinquency of a Minor,” and fined “not more than $1000, or imprisoned for not more than 180 days, or both.”
The bottom line is, there are too many different child protection laws in too many different jurisdictions, and savvy miscreants, like Mark Foley, are exploiting the cracks in our fractured system. At the very least, it's time to federalize the age of consent to 18. If young people are required to be 18 before they vote or join the military, they should be at least that age to consent to sex (or even Internet sex) with the Mark Foleys of the world. Moreover, statutes that do not include specific language about sending electronic forms of obscene material to minors must be updated to reflect the modern age.
Absent the release of new information, Mark Foley may be a law-abiding citizen. But when one in five young people receive sexual solicitations online, that's more than just a scandal, it's a wake-up call. Let's fix the law.
• Foley, six-term
• Louisiana Law — available on Lexis or Westlaw
Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.