The Volokh Conspiracy -

[Orin Kerr, October 3, 2006 at 5:25pm] Trackbacks

Legal Issues in the Mark Foley Investigation: 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.

More on the Foley Legal Issues:

Most of the legal discussion that I've seen of the Foley case has focused on whether he could be on the hook for attempting to physically seduce the pages. Might it be a crime, though, for him to try to get the page to masturbate? (It's not clear from the material that I've seen whether he was in fact trying to do that, but I suppose it's possible.)

Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age. People v. Imler., 9 Cal. App. 4th 1178 (Cal. App. 1992), for instance, held that Cal. Penal Code § 288()a), "Any person who willfully and lewdly commits any lewd or lascivious act, ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony," outlawed a person's telephoning a child and ordering him (through threats of harm to the child's parents) to masturbate while the child is on the phone:

It matters not that Imler could not touch his victim. "The touching necessary to violate Penal Code section 288 may be done by the child victim on its own person providing such touching was at the instigation of a person who had the required specific intent." The accused does not have to commit the lewd act. The defendant's intent may be inferred from his conduct which was to order the victim to commit a lewd act upon himself.

(The logic of the case would extend to persuasion without the use of threats as well.) Likewise, People v. Poplaski, 616 N.Y.S.2d 434 (N.Y. Dist. Ct. 1994), held that N.Y. Penal Law § 260.10(1), which prohibits "knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old," made punishable the defendant's phone conversations in which he directed 12-to-15-year-olds to masturbate.

My sense is that such a theory is a longshot, even if Foley was trying to get a minor to masturbate during their electronic conversation; among other things, I'm not sure that all similar statutes would be read this way, and I'm not sure that many states have such statutes that reach up to the level of the older minors who seem to have been involved in the Foley case. (I should note that some states ban using a child in a "sexual performance," which conceivably could include getting the child to masturbate in front of one person, but the Florida statute, for instance, is limited to visual performances rather than acts which someone merely hears, or is told about.) And, more importantly, it's hard to figure all this out without knowing more about exactly what Foley said, and exactly where the minors were at the time.

Related Posts (on one page):

Prosecution of Foley:
More on the Foley Legal Issues:
Legal Issues in the Mark Foley Investigation:

Comments

[David Kopel, October 5, 2006 at 1:18am] Trackbacks

Prosecution of Foley:

Eugene writes: "Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age." He then cites modern cases from California and New York which might support this theory.

It wasn't so long ago that statutory law was very clear on the subject. During the Progressive Era, there was a widespread, and successful, campaign in which medical science was used to promote laws against sexual conduct which was, supposedly, unhealthy and dangerous.

This effort led as far as statutes in both Indiana (enacted in 1881) and Wyoming (enacted in 1890) that included the following language in their criminal codes: "Whosoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution shall be deemed guilty of sodomy."

Ronald Hamowy, Preventive Medicine and the Criminalization of Sexual Immorality in Nineteenth Century America, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 78 (Randy E. Barnett & John Hagel III eds., 1977), cited in Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public Policy, book review of America's Longest War: Rethinking Our Tragic Crusade Against Drugs (By Steven B. Duke & Albert C. Gross. New York: G.P. Putnam's Sons, 1993. Pp. xix, 348. $26.95), 103 Yale Law Journal 2593, 2607 (1994).

The Sodomy Law website cites the Wyoming statute as Laws of Wyoming 1890, page 139, ch. 73, §87, and notes that the statute was repealed in 1977.

The Indiana statute carried a penalty of 2 to 14 years. Acts 1881 Indiana, page 174, ch. XXXVII, §100. In Young v. State, an activist state supreme court construed the masturbation statute so broadly as to apply it to cunnilingus. 141 N.E. 309 (1923). In 1973, the anti-masturbation law was amended so that it applied to persons under 18, rather than persons under 21. Acts 1973 Indiana, page 1732, Public Law No. 320, at 1733-1734, §3. The law was entirely repealed in 1976 when the criminal code was revised.