Mark Foley - is engaging in sexual discussions with a minor online a crime?

I have been called by legislators, law enforcement and media, all asking the same question - is what Mark Foley did in e-mails or IMs with former pages a crime? Can he be charged with a crime? Although I covered this last night for the ABC Nightly News team who broke this story, it will help others understand what is and what isn't covered by US laws. And, while boring, a review of the law might help us determine if we need more legislation or clarity. The bottomline answer is "It depends on whether there is proof of his intent to engage in more than just chatting about sex." And the jury is still out on that.

Before I lay it out, I need to explain some of the conditions/assumptions. In the US there are state (or local) and there are federal laws. In the case of child sexual exploitation, there are often both state and federal laws, sometimes conflicting and sometimes complementing each other. This response covers Federal laws and references NY laws, as well. (Although I have no reason to believe that NY laws would apply.)

I have seen some of the communications. I am not sure if all of those I reviewed have been made public or not. I suspect that more communications will be discovered as time goes on and more young men or witnesses may come forward. So, this is based on what I have seen to date.

The most important laws covering online communications with minors involving sexual activities is Title 18, Section 2422 (a) covers someone who is trying to get the minor to travel across state lines (and also covers Internet communications as federal commerce) and provides:

"(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or 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 or imprisoned not more than 20 years, or both."

Title 18, Section 2422 (b) covers someone who is trying to get a minor to engage in sexual activities which would constitute a crime, and provides:

"(b) 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 5 years and not more than 30 years."

The important provisions for this law to apply require that 1. the minor is under 18, 2. the adult "knowingly" is involved in this activity, 3. they have gotten the minor to, or are trying to get the minor to, "engage in any sexual activity for which any person can be charged with a criminal offense."

As in all criminal laws within the United States (with a few exceptions not relevant here), intent (or "mens rea") is essential. The prosecution must prove that the person charged with the crime intended to engage in the criminal activity. In this case, the criminal activity would have been engaging in criminal sexual activity with a minor. But just talking about it, without proof of intent to act on it, may not be enough.

The law is very clear that not all sexual activity is covered. Only sexual activity "for which a persona can be charged with a criminal offense." Verbal or written communications, unless they arise to a special level (such as talking about bombs on a plane, or stating that you intend to kill the President, etc.) are generally not criminalized. Images are more likely to be criminalized than written or oral or digital "speech." This has to do with the First Amendment protections and the underpinning belief that words, in most cases, are not dangerous and the ability to speak them should be protected.

In addition, many people say things without intending to do them. The laws in the US are designed to make sure that innocent people are not put in jail. This differs from the premise in some other countries that no guilty person shall go free. Whether you agree or not, it's the basis of the US legal system and reflected throughout our constitution.

With that in mind, let's look at the communications purportedly between Foley and several pages. At least one claimed to be 17, turning 18 on February 23rd next year.
If it could be proven that Foley intended to engage in sexual activity for which a person could be charged with a criminal offense with that young man, he could go to jail. Even consentual sex with this young man, given their age difference, would have been potentially criminal if it occurred before the young man's birthday.

At what point did his activity become criminal? At what point merely fantasy? Was he prepared to act on his discussions or just have discussions? The answer to that is what will determine the legality or criminality of his actions.

A longstanding NY law covers "grooming" which is when adults engage minors in sexual communications designed to entice them into sexual activities. It works both online and offline. In the UK, "grooming" laws were implemented without the challenge of the First Amendment of the US Constitution. The NY law criminalizes the sending of "indecent" content to minors.

The law provides:
NY CLS Penal § 235.22 (2006)

§ 235.22. Disseminating indecent material to minors in the first degree

A person is guilty of disseminating indecent material to minors in the first degree when:

1. knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor; and

2. by means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.

Disseminating indecent material to minors in the first degree is a class D felony.

In 2004 the NY courts in The State of NY v. Jeffrey Skya (2004 NY Slip Op 24442; 6 Misc. 3d 188; 789 N.Y.S.2d 403; 2004 N.Y. Misc. LEXIS 2158 decided October 29, 2004)
(looked at a challenege to this law, which was based on the fact that no images were used, only graphic discussions of sexual activity. Without an image, the defendant contended, the law could not apply. The judge disagreed.
He looked instead to the Oxford University Press dictionary which "defines "depict as 1). Represent by a drawing, painting or other art form; 2). Portray in words. The Thesaurus gives the following synonyms for depict: describe, draw, delineate. It is therefore clear to this Court that the "plain meaning" of depict includes words and is not limited to only visual images."

he then went on to explain that "the statute prohibits the communication which depicts actual or simulated sexual conduct. "Simulated" is defined by the Penal Law as follows: "the explicit depiction or description of any of the type of conduct described....which creates the appearance of such conduct." Penal Law Section 235.00(6).(emphasis supplied)."

In dismissing the defendant's challenge, the judge stated that "Clearly the legislature enacted this law to address the growing concern over pedophiles communicating with minors over the computer network regarding sex and luring the minor into a sexual relationship. "The legislative use of inherently imprecise language does not render a statute fatally vague so long as that language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." People v. Shack, 86 N.Y.2d 529, 538, 658 N.E.2d 706, 634 N.Y.S.2d 660 (1995). Penal Law Section 235.22 clearly puts an offender on notice of what conduct is prohibited, i.e., sexually oriented computer communication with a minor for the purpose of inducing or inviting that child to engage in sexual conduct with the adult."

The existing federal laws do not read "depiction" as broadly as the NY law does.

I was just informed that the NY law was recently successfully challenged, finding that words alone (without images) were insufficient to trigger the criminal law. I was told a case came down in July. I will look into this.

so, until then, the answer to whether Foley's actions are criminal, based on his discussions without more, is "not sure."

a lawyerly answer if I ever heard one. :-)