Also In This Issue The Foley Fallout · A Calamity For Gay Republicans [an error occurred while processing this directive]

By Brian Friel, National Journal
© National Journal Group Inc.
Friday, Oct. 6, 2006

In March of this year, a federal judge sentenced Dwight Whorley of Richmond, Va., to 20 years in prison after he was found guilty of a variety of child-pornography charges, including receiving 20 obscene Japanese anime cartoons. The case drew attention in child-protection circles because Whorley was the first person convicted under a 2003 federal statute that makes viewing such nonphotographic material a crime.

Whorley was also convicted of sending and receiving 20 obscene e-mails that described sex involving children. He had broken the federal law that prohibits online viewing of "any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character."

That federal statute is one of several that could come into play as the FBI's Washington Field Office and the Justice Department's Child Exploitation and Obscenity Section run an investigation into former Rep. Mark Foley, R-Fla., and his online sexual activities with underage boys. The federal investigators, as well as state and local agents who may be brought into the case, will try to determine what Foley actually did, the jurisdiction in which he did it, the age of the boys involved, and what state or federal laws he might have violated. "You've got to look at specifics," said Robert Peters, president of Morality in Media, a New York-based anti-pornography group. "Where did the thing get sent from? If it was all in Washington, that eliminates Florida.... And if it's interstate, then you're back to the federal law."

The federal laws potentially in play include an obscenity statute that prohibits the "transfer of obscene material to minors" and defines a minor as a child age 15 or younger. The youngest alleged recipient of sexually suggestive or sexually explicit messages from Foley was 16.

The statutes that Whorley was convicted of violating are based on the material itself, not on the age of the sender or receiver. Under such laws, juries determine whether community standards were violated and whether the material in question appeals to "prurient" interests.

Also in play are federal and state "coercion and enticement" statutes. Federal law prohibits adults from persuading -- or attempting to persuade -- children younger than 18 to engage in illegal sexual activity. Brian Doyle, a former public-affairs officer in the Homeland Security Department, pleaded no contest in Florida last month after being arrested for engaging in online discussions about a sexual rendezvous with a law enforcement agent posing as a 14-year-old girl.

If Foley attempted to arrange sexual encounters with anyone under the age of consent, he could face enticement charges. The age of consent is 16 in the District and 18 in Florida. If Foley stopped short of arranging physical encounters, his messages still might constitute a sex crime, depending on location. California law, for example, makes it a crime for an adult to send material designed to "arouse" and "seduce" a minor. Florida law prohibits adults from using a computer to transmit a statement "encouraging ... sexual conduct of or with any minor." The federal coercion statute, which could be applied in conjunction with various state laws, carries a mandatory minimum prison sentence of 10 years, according to child-protection expert Mary Leary, a visiting professor at Catholic University of America's law school.

Leary, who stressed that she wasn't commenting specifically on the Foley investigation, said prosecution of online child sex cases relies heavily on each case's details -- where the activities occurred, when they took place, and who was involved. "It really is a fact-specific, fact-driven inquiry," she said.

Experts in the laws dealing with obscenity and child exploitation generally say that federal and state statutes are adequate for dealing with most online predators. "We have some excellent federal laws," said Jan LaRue, chief counsel for Concerned Women for America, a conservative Washington advocacy group. "They need more vigorous enforcement."

Melanie Sloan, executive director of the liberal-leaning watchdog group Citizens for Responsibility and Ethics in Washington, is a former sex-crimes prosecutor. In July, Sloan sent the FBI copies of e-mails from Foley that had "freaked out" a former congressional page -- the first Foley messages that became public last week. At the time, the FBI did not see evidence of a federal crime. "The law is a little tricky," Sloan said when asked how the government will decide whether to bring charges. "The way you do it is, you find out what he did."

Justice Department spokeswoman Tasia Scolinos said Attorney General Alberto Gonzales "takes any allegations of child exploitation extremely seriously. And he has directed those in charge of the inquiry to take all appropriate steps to get to the bottom of this unfortunate situation as soon as possible."

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