- The Washington Times - Wednesday, October 4, 2006


Former Rep. Mark Foley’s online conversations with teenage male pages have all the trappings of a political scandal, but making a federal case out of the sexually charged exchanges could prove difficult, veteran investigators say.

Mr. Foley, a six-term Republican from Florida, resigned abruptly Friday after ABC News first reported on the e-mails and instant messages.

With the FBI investigating Mr. Foley’s behavior, his defense attorney, David Roth, said the former congressman never had sex or attempted sexual contact with a minor. Mr. Foley, who is being treated for alcohol abuse, was drinking when he had the explicit conversations, Mr. Roth said.

“Any suggestion that Mark Foley is a pedophile is false,” Mr. Roth said Tuesday at a press conference in West Palm Beach, Fla.

If Mr. Foley never had sex with a congressional page, then his case is in uncertain legal territory, said Ken Lanning, a retired FBI agent who served as one of the agency’s leading specialists on child exploitation.

“There are going to be some issues here in the gray area,” Mr. Lanning said. “You may find this behavior repulsive, offensive or immoral. Whether it’s a violation of law will be based on a precise reading of the law.”

Some Democrats have contended that Mr. Foley might have violated the federal law used to prosecute Internet sex predators, but legal analysts said it’s not that simple.

On the surface, the chat transcripts released by ABC News look much like any of the explicit conversations the FBI has used as evidence in its many Internet sex stings. In those cases, however, the sexually charged talk led to an arrest when adults arrived for real sexual encounters.

Graphic talk alone is rarely enough, said Joseph Dooley, a former FBI agent. Many adults engage in explicit chats with undercover agents but never show up for the scheduled meetings, he said.

“We never charged anyone unless they actually traveled to have sex,” Mr. Dooley said.

Investigators could consider federal obscenity laws, legal analysts said, but the law prohibiting disseminating obscene material to children applies only to those younger than 16.

Benjamin Vernia, a former federal prosecutor specializing in such cases, compared Mr. Foley’s online conversations with pages to “grooming,” a law-enforcement term for the way sexual predators gain the trust of their underage victims. Grooming is a red flag for authorities, Mr. Vernia said, but it’s rarely enough to bring charges.

The question for federal investigators is whether Mr. Foley’s online chats ever led to real encounters. One chat transcript suggests Mr. Foley and a page had met in San Diego, but the chat doesn’t indicate what took place.

Even if a sexual encounter occurred, however, that won’t necessarily be enough to lead to charges. It depends on how old the pages were at the time and what the age of consent was in that state.

If a state law was broken and authorities can show Mr. Foley used the Internet to facilitate it, that could trigger federal jurisdiction, legal analysts said.

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