Oct. 5, 2006 -- Lurid, explicit e-mails and instant messages to underage congressional pages may have ended former Florida Rep. Mark Foley's political career, but he may never face criminal charges.
FBI and Florida state officials are investigating whether Foley, 52, violated any laws with his communication with young pages.
Foley, who represented Florida for 12 years in Congress and was best known as a protector of children as chairman of the Missing and Exploited Children's Caucus, resigned Sept. 29 after ABC News questioned him about sexually explicit online messages he had sent to current and former congressional pages under the age of 18.
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Despite Foley's resignation -- and the potential political fallout of the scandal surrounding his Internet messages -- experts say it may be difficult for investigators to bring a criminal case against the disgraced former congressman.
"Based upon what I've seen, he had inappropriate communication with underage pages, but I haven't seen anything -- no specific action -- where Foley specifically solicited anyone to commit unlawful acts," said California-based defense lawyer Steve Cron.
"It sounded more like it was childish teasing, titillating communication that was meant to excite and entertain. Was what he did immoral and duplicitous, considering he had a reputation as such a family, law-and-order type of guy? Sure. But I'm not convinced he committed a crime," Cron said.
Need More Than Graphic Innuendo in E-Mails and Instant Messages
At least one former page, according to ABC News' Brian Ross Unit, has reportedly offered evidence that Foley sought to solicit sex during instant-message exchanges over the Internet.
Officials told ABC News that they suspected Foley's extensive knowledge of child-exploitation laws might have helped guide him as to how far he could go without violating the law.
Instant messages obtained by ABC News suggest that Foley met or arranged meetings with former male pages under the age of 18.
One instant message from Foley, who used the screen name "Maf54," indicates that he met a page in San Diego, but it does not reveal specifically what transpired between them:
Maf54: I miss you lots since san diego.
Teen: ya I cant wait til dc
Teen: did you pick a night for dinner
Maf54: not yet … but likely Friday
Teen: ok … ill plan for Friday then
Maf54: that will be fun
Other instant-message exchanges provided to ABC News by former congressional pages were more sexually explicit. But observers say investigators will need more than graphic innuendo to bring a case against Foley.
They will need a message or exchange that shows a specific, clear solicitation of sex from Foley to a minor.
"Based on what has been disclosed, there is no actionable crime here," said Ronald Carlson, a professor at the University of Georgia School of Law. "Right now, this all falls in the realm of plenty of voyeurism. The law is not very cognizant of what you yearn for in your mind; it applies to what you act upon."
I Did Not Have Sex With That Young Page
Perhaps Foley could face charges for serving alcohol to a minor.
Another instant-message exchange in April 2003 obtained by ABC News suggested that Foley had set up a meeting with a page and had offered him alcohol:
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.
Drunk and Molested: Possible Foley Criminal Defense?
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."