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Foley likely to face criminal charges, legal experts say

As investigators look into the former congressman’s actions, he could find himself ensnared by laws he actually helped write.

By CARRIE WEIMAR
Published October 3, 2006

There’s little doubt Mark Foley was morally wrong when he used the Internet to send sexually explicit messages to teenage boys. Now legal experts are saying he probably violated the law as well.

As facts emerge in the investigation into the former congressman, the possibility of criminal charges — both state and federal — grows, said Douglas A. Berman, a law professor at Ohio State University.

“Foley’s hasty retreat from the House of Representatives suggests that this is just the tip of a pretty sordid iceberg,” Berman said.

While Internet sex crimes are a relatively new area of the law, the fear of online predators has sparked a flurry of state and federal laws in the past few years — some of them written by Foley himself as co-chairman for a National Center for Missing & Exploited Children caucus.

The case is complicated because it spans at least three jurisdictions, including Washington, D.C., Florida and the federal system. That number could multiply quickly depending on where the pages were when they received Foley’s messages.

But as the number of localities involved in the investigation grows, the chances Foley will be charged with a crime increases, Berman said.

“You’re not just counting on one prosecutor,” Berman said. “It’s more likely there’s going to be someone who sees this as the kind of case that should be pursued.”

The key factor FBI and Florida Department of Law Enforcement investigators will be searching for is evidence that the racy instant messages Foley exchanged with former congressional pages were used to arrange a meeting, said John Fitzgibbons, a Tampa lawyer and former federal prosecutor.

“As a general rule, law enforcement does not bring charges against an individual who is communicating with children,” Fitzgibbons said. “They want a meeting to take place. Something more than just chatter.”

If Foley attempted to meet the pages in person, it could constitute the necessary evidence for a federal charge of “soliciting for sex” with a minor on the Internet. The charge carries a maximum penalty of 30 years in prison.

While the messages made public so far have stopped short of arranging a meeting, Foley could still be found to have violated federal law, depending on the ages of the recipients, said Mary Leary, a visiting law professor at Columbus School of Law at Catholic University of America in Washington D.C.

The “transfer of obscene material to minors,” defined as a person under age 16, can be punished by up to 10 years in prison. However, “obscenity is a high standard,” said Leary, a former state and federal prosecutor.

If any of the messages were transmitted from Florida, the law becomes a little clearer.

Florida is one of several states that makes it a crime to transmit material harmful to minors over the Internet.

Harmful material includes descriptions of “nudity, sexual conduct or sexual excitement.” The third-degree felony is punishable by up to five years in prison.

Carrie Weimar can be reached at cweimar@sptimes.com or (813) 226-3416.

[Last modified October 3, 2006, 23:06:37]