Views diverge on whether Foley will face charges

Is former U.S. Rep. Mark Foley's explicit e-mail talk with teenage boys a crime?

It's a question many are asking, with many possible answers.

The Palm Beach Post reported today that:

Tawdry text alone may be offensive but not illegal, attorneys and federal investigators have said. But what it led to or might lead to — including search warrants and further probing — is a tale still untold.

Foley's attorney, David Roth, said Tuesday that Foley accepts responsibility for the "totally inappropriate" e-mails and instant messages, but denies any actual contact with the teens.

"He reiterates unequivocally that he has never had sexual contact with a minor," Roth said.

If Foley never had sex with the boys, his case is in uncertain legal territory, said Ken Lanning, a retired FBI agent who served as one of the agency's leading experts on child exploitation.

"There are going to be some issues here in the gray area," 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."

One accomplished Miami defense attorney, though, pointed to a federal law commonly known as the "enticement statute." The law punishes a person who knowingly "persuades, induces, entices or coerces" anyone under 18 to engage in criminal sexual activity or even attempts to do so.

Foley voted in 2003 to enhance the penalties for the crime. The sentence now is a minimum of five years and a maximum of 30 years in prison.

Attorney Douglas Williams read the law and read Foley's messages, which referred to masturbation among other things.

"I would say that a reasonable, conservative government lawyer would not be out of bounds or risk-taking if he or she indicted based upon what I read," Williams said.

It would be a battle of titans, though.

"We are at a place where politics and law enforcement are about to have a collision as violent as a bull rhino and rogue elephant," Williams said.

Attorney Mark Johnson of Stuart, a former 15-year federal prosecutor, also thought of that federal enticement law as he read the Foley messages revealed to date. "In those e-mails, he certainly tiptoes dangerously close to the line," Johnson said.

Both the Florida Department of Law Enforcement and the FBI have acknowledged conducting "preliminary investigations" of Foley's conduct, although FDLE Commissioner Gerald Bailey said the FBI has begun the process of seizing computers from Foley's homes and offices, the St. Petersburg Times reported Wednesday. Several news outlets also reported that the Justice Department ordered House officials to preserve records of Foley's electronic correspondence with teenagers.

FDLE spokesman Tom Berlinger would not confirm or comment on warrants or seizures of Foley's computers. Berlinger said it was a "truly preliminary inquiry" to see if any Florida laws had been broken.

Berlinger cited a chapter of child-abuse law that deals with sexual performance of children, some crimes of which are punishable by up to 30 years in prison.

"The question is, what is a prosecutor willing to prosecute?" Berlinger said. "You know that one man's lurid is another man's church-going stuff."

The Internet transcripts released by ABC News look like the conversations police often use in Internet sex stings. In those cases, however, the sex talk leads to an arrest when adults arrive for real sexual encounters.

Locally, a priest, a rabbi, a prosecutor and a number of married men have been arrested after showing up to meet people they thought were teens.

Graphic talk alone is rarely enough, said Joseph Dooley, a former agent who helped set up New England's first FBI unit targeting Internet predators. Many adults engage in explicit chats with undercover agents but never show up for the scheduled meetings, he said.

The complete story may be found here:
http://www.palmbeachpost.com/politics/content/local_news/epaper/2006/10/05/a17a_legal_1005.html