« SCOTUS fun: Name that Justice! | Main | Two big starts on Tuesday »

October 2, 2006

How could and should Foley be prosecuted?

Late yesterday, while trying to wrap up some pre-sundown work, I had a chance to speculate about possible prosecutorial issues in what is being called predatorgate.  That speculation turned into this New York Times story, which in turn has led to a lot of calls from various folks about exactly what former Rep. Mark Foley could be charged with as a result of his improper contacts with congressional pages.

I am not an expect on the reach and nuances of all sex offense laws, so I keep saying simply that federal and state prosecutors will have many legal issues to consider as the facts emerge.  Indeed, as well documented here and here at one of ABC's blogs, new revelations about Foley's e-mails suggest a lot more possible grounds for criminal liability.

Because I am interested in a fair assessment of the criminal issues raised by this case without the partisan political overlay, I am eager to hear from knowledgeable folks (either in comments or via e-mail) about how they think Foley could and should be prosecuted for his behavior.  Relatedly, I wonder if folks think Foley's high profile will lead to him being treated more harshly or less harshly by the criminal justice system than if there were similar revelations about the behavior of, say, a mid-level corporate executive.

October 2, 2006 at 07:04 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference How could and should Foley be prosecuted?:

» Tuesday Roundup from ACSBlog: The Blog of the American Constitution Society
The National Labor Relations Board issued an opinion expanding the defintion of "supervisors" to include "any worker who has the authority to assign or responsibility to direct another employee as long as they require independent judgment." Workers cla... [Read More]

Tracked on Oct 3, 2006 4:59:58 PM


Regarding the “will he be treated more or less” harshly part of your question, here are my initial thoughts:

If it turns out that the basis for a prosecution is weak or novel(which is really the first part of your question), I would think it relatively easier for a defense lawyer to convince a prosecutor to dismiss or reduce a case, if it were not high-profile. It’s the presence of the media that makes it harder for a prosecutor to “go easy on someone”, which is how it would play out in the press.

If it turns out that there is a strong argument for whatever statute they find to prosecute (which seems unlikely, given all the buzz so far), I still think the media pressures hurt defense negotiations; probably not resulting in as much a relative sentencing disparity difference however, from the unknown defendant.

Posted by: Jamie Spencer | Oct 2, 2006 9:42:40 PM

Mr. Foley transmitted messages, inappropriate, but are they enough to make him a criminal, a predator, a sex offender for life and possibly place him in a Federal prison? Yes, if he is to be treated as many have in our justice system.

Some people have merely viewed free images that are accessible to anyone on the internet. No purchase was made, no transmission of material, no email contact, no physical contact with a minor, no prior criminal history, no disks or hardcopies made.... and for viewing (possession on the computer), he served 10 years in prison, and is now branded as a sex offender for life. The "SCARLET LETTER" in place for his entire life. IS this justice? A young college student.... there was no second chance or rehabilitation or probation for him. He had the support of family, friends and professors. It did not matter. He was branded a sex offender forever. There is no moving on or starting over. Living restrictions ban you from most cities and places to live. No one wants to hire someone branded as a sex offender no matter how intelligent and remorseful one may be. No one wants to rent to someone. There was no second chance, no rehabiliation or suspended sentence (like Kramer Lagent received). Where is justice? What exactly is justice?

Posted by: DK | Oct 4, 2006 10:51:22 PM

I would think this statute, especially paragraph(b), applies to Mr. Foley. No sex needs to occur only an attempt over the Internet to entice a minor to engage in sex.

Title 18 § 2422. Coercion and enticement

(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.

(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.

Posted by: Edward Dryg | Oct 5, 2006 1:27:01 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB