Maf54: then we can have a few drinks
Teen: yes yes ;-)
Maf54: your not old enough to drink
Teen: thats not what my ID says
Teen: i probably shouldnt be telling you that huh
Maf54: we may need to drink at my house so we dont get busted
Foley's attorney, David Roth, said Tuesday that the former congressman, who is now in an alcohol-rehabilitation facility in Florida, took responsibility for the graphic messages he sent to young pages.
But Foley insists he never had sex with them or provided them alcohol at his Capitol Hill apartment.
"Any suggestion that Mark Foley is a pedophile is false," Roth said.
Often, investigators make arrests following online solicitation of minors when one party shows up for a real-life scheduled sexual encounter.
Prosecutors would need evidence that Foley solicited sex and traveled to have the sexual encounter, and that a sexual tryst happened.
However, even if there was a sexual encounter, that may not be enough for charges against Foley.
The age of sexual consent varies from state to state. While the age of consent in Florida and Washington, D.C., is 16, it is 18 in California.
And teenagers have to be at least 16 to serve in the Congressional Page Program.
In addition, if a case was brought against Foley at the state level, prosecutors may run into conflicts because of the different ages of consent.
For example, which state law would investigators follow if Foley sent an e-mail from Washington, D.C., where the age of consent is 16, to someone in California, where it is 18?
Because the FBI is investigating Foley, observers say investigators will most likely focus on building a federal case, where the law prohibits both sending obscene messages and material and crossing state lines or international borders with the intent of having sex with a person who is under 18.
"It depends on the jurisdiction. You have to look at the state law where you have the rendering of messages in sex-crime offenses," said Florida defense lawyer Roy Black.
"Many of these questions haven't been answered yet, but given the FBI's involvement, the government is probably looking to bring a federal case because the computer-entry laws are broad and easier to prosecute," Black said.
Foley, Roth said, was also under the influence of alcohol when he sent the messages to the pages. Foley, he said, wanted the public to know that he is gay and that he was molested by a clergyman when he was between the ages of 13 and 15.
Roth said Foley was making these public announcements as part of his rehabilitation. But was he really setting the stage for a possible criminal defense?
"The thing is, I'm not sure exactly what [crime] he is defending himself against," said Cron, the California lawyer. "I'm not sure what he was trying to accomplish with this, but it's not like any of these admissions make him look like any better. It's not like anyone will say, 'Oh, he was molested. That explains it. Oh, he's gay -- all is forgiven.'"
Roth has suggested that Foley will be fully cooperative with investigators and that he "has absolutely agreed on his own and with our counsel not to do anything with any computer, not to delete any messages, not to obliterate or attempt to obliterate any IMs, e-mails, Internet communications."
Meanwhile, the FBI is continuing to analyze e-mail and instant-message exchanges between Foley and pages. There is no indication that FBI investigators have seized Foley's computers, but that could change.
"I have to assume that the FBI will be checking his computer for porn," said professor Carlson. "If it's gay porn, that's one thing. But if it's child pornography, that's a violation of federal law. … Remember that's what's facing [former JonBenet Ramsey suspect] John Karr in California."