The FBI is investigating whether Congressman Mark Foley violated federal law in his sexually explicit IMs and e-mail communications with House pages over the last few years. The case actually brings up a bunch of very interesting legal questions, and I wanted to explain the issues for readers who are following the story in the news.
The basic law at issue here is 18 U.S.C. § 2422(b), sometimes known as the federal enticement statute, which is part of the Victorian-era legislation known as the Mann Act. The basic point of the statute is making it a crime to use a means of interstate commerce to try to persuade a minor to engage in an illegal sexual act. Here’s the key text:
Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.
Using IM or e-mail clearly counts as using a facility or means of interstate or foreign commerce. See, e.g., United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006). And at least based on the e-mails we know about, it looks like Foley didn’t actually succeed in persuading any minors to engage in sexual activity. So the question is whether Foley made an attempt to persuade, induce, or entice a minor to engage in an illegal sexual act.
What does this mean? Well, the answer is a little technical. It turns out that in criminal law, attempting to do something means more than just trying to do it. Different courts use different tests, but all distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the “substantial step” test for attempt borroewed from the Model Penal Code. Under this test, a person is guilty of an attempt to commit a crime “if, acting with the kind of culpability otherwise required for commission of the crime, he … purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” United States v. Hsu, 155 F.3d 189, 202-203, 203 n. 19 (3d Cir. 1998) (quoting Model Penal Code § 5.01(1)(c)). As you might guess, this often requires difficult line-drawing; whether conduct is a “substantial step” or not can be mushy, and generally is a question for the jury that courts are reluctant to second-guess.
The requirement that the sexual act be “activity for which any person can be charged with a criminal offense” generally incorporates the state law where the suspect expects the illegal sexual act will occur. State laws can vary, which can make it important to figure out the state in which the suspect was trying to have the offense occur. For example, in United States v. Patten, 397 F.3d 1100 (8th Cir. 2005), a police officer in West Fargo, North Dakota, posed in an Internet chat room as a 16 year old girl. The defendant visited the chat room from his home in nearby Moorhead, Minnesota. The officer persuaded Patten to come to a grocery store in West Fargo, where the defendant was arrested. The law of North Dakota and Minnesota differ in a critical respect: in Minnesota, consensual sexual conduct between an adult man and a 16 year-old girl is legal, whereas the same conduct is illegal in North Dakota. The defendant argued that there was insufficient evidence that he had intended to engage in sexual activity in North Dakota, and therefore had not violated the federal statute. According to the defendant, he had planned to engage in the illegal activity in Minnesota, where it would have been legal. The Eighth Circuit affirmed the conviction, ruling that there was sufficient evidence from the facts of the case for a reasonable juror to conclude that the defendant intended to persuade the girl to engage in sexual activity in North Dakota. See id. at 1103-04.
So where does that bring us? Putting the pieces together, the legal question is whether Foley’s communications were a substantial step in a course of conduct planned to culminate in persuading a minor to commit a sexual act that would be illegal where the act was expected to occur.
Would a jury convict on the basis of that test? I haven’t done more than scan quickly through some of the published e-mails and IMs, and I’m not sure all of the communications have been made public, so I don’t know whether I think a jury should convict. And of course we would need to know what state we’re talking about to answer the question fully. But whether a jury would convict may depend at least in part on where any case would be brought, which depends on where venue is present.
In an 18 U.S.C. § 2422 case, venue is proper in “any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). See United States v. Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). Although I don’t know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice. I would guess that prosecutors are looking for IMs and e-mails sent to minors when they were back home, far from Washington DC, perhaps in socially conservative states or districts where jurors would be particularly likely to see Foley’s e-mails as the danergous products of a sexual predator. If they decide to prosecute, the feds probably would bring the case in that state or district.