Foley Unlikely to Be Prosecuted; Lewd Internet Messages Too Old

By Vic Walter And Krista Kjellman

Sep 14, 2007 8:26am

Disgraced former Congressman Mark Foley, whose e-mails and instant messages to teenage former congressional pages shocked the country, may avoid criminal prosecution in Florida because of the state’s three-year statute of limitations. The Florida Department of Law Enforcement did not start a criminal investigation of Foley until November 2006, making it nearly impossible to prosecute what some officials regarded as the best case, an explicit instant message sent by Foley to a 17-year-old high school student in February 2003, when Foley was in Pensacola, Fla. "Barring any extraordinary circumstances, it is very unlikely for charges to be filed in a case once the statute of limitations has run its course," said Aya Gruber, a former federal public defender and professor of law at Florida International University. THE BLOTTER RECOMMENDS Photos Foley Racing Into Trouble? Discretion Advised Read the Instant Messages That Forced Foley to Resign Full Blotter Coverage Mark Foley Internet Scandal Click Here for Full Blotter Coverage. Federal officials turned the case over to Florida after concluding that Foley did not engage in any actual sexual contact until the former pages had turned 18, and had therefore not violated federal law. Washington, D.C. law defines the age of consent as 16.    Under Florida law, it is a third-degree felony both to use the Internet "to seduce, solicit, lure or entice" a minor "to commit any illegal act…relating to lewdness and indecent exposure" and to transmit any "information or data that is harmful to minors…via electronic mail," which includes instant messages. The statute of limitations hasn’t been the only hurdle in the Florida investigation. Last month, lawyers for the U.S. House of Representatives denied Florida law enforcement officials access to the former congressman’s computers, as previously reported on the Blotter on Investigators believe Foley may have used the machines to send illegal sexually explicit message to former congressional pages. A Florida Department of Law Enforcement spokeswoman told ABC News at the time that House lawyers denied their request to turn over the computers, citing the Speech or Debate Clause of the Constitution, which protects congressional papers. The House claims Foley’s computers are the equivalent of congressional papers, and that only Foley can waive his congressional privilege and grant access to them.  At the time, the spokeswoman, Kristen Perezluha, had said the department was working with Foley’s lawyers to obtain access to the computers. This week she would neither confirm nor deny they had been granted access. Perezluha did tell ABC News the investigation was almost done. "They (investigators) hope to have it wrapped up soon," she said. Calls to Foley’s attorney were not returned. Foley resigned Sept. 29, 2006, hours after ABC News questioned him about sexually explicit messages with former congressional pages, some of whom were under the age of 18 at the time of the exchanges. This post has been updated. Do you have a tip for Brian Ross and the Investigative Team?

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