Did Rep. Foley Commit a Federal or other Crime?

[Bledsoe]

Some people are now saying that Foley cannot be prosecuted and that graphic sex talk via the computer with a person under 18 is not a crime.

See:  http://www.latimes.com/news/nationworld/nation/la-na-legal5oct05,1,7063316.story?track=rss&ctrack=1&cset=true  

I cannot believe this is the case.

Federal Law appears to only make it a crime under 18 U.S.C. Section 2422(b) if:

Whoever, using the mail or 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 prostitution or

    any sexual activity for which any person can be charged with a criminal
   offense, or attempts to do so,

You then have to look to other law to find "any sexual activity" for which any person can be charged with a criminal offense.

For example in Oklahoma the age of consent for sexual activity is normally age 16 unless you are a parent or responsible for the care of a minor (10 O.S. Section 7101 et seq.), an employee of a school in which the person is a student  or are in the custody of a state institution.  See 21 O.S. Section 1111.  

Note:  If Foley's actions occurred in Oklahoma he probably is an employee of the school in which some of these persons were students, i.e. the House of Representatives.

21 O.S. Section 1029 makes it a misdemeanor to solicit any person to commit an act of lewdness.  The law does not require money to be involved.  See SAWATZKY v. CITY OF OKLAHOMA CITY, 1995 OK CR 69, 906 P.2d 785.  This law may now not be constitutional for those over 16 based on case law.  See Lawrence v. Texas 539 U.S. 558 (2003).  But  it is a felony if the person is under 16.

Oklahoma (and perhaps other states) also have cyber crime laws that make the use of a computer to "encourage, offer or solicit sexual conduct with a minor, or other individual the person believes to be a minor" a felony.  21 O.S. Section 1040.13a.  This would appears to apply to any person under 18.  See statute below.

Thus, if Foley was in Oklahoma or communicated with someone in Oklahoma that was under 18 or who he thought was under 18 it clearly appears he could be prosecuted under both Oklahoma and Federal law.  It is hard for me to believe that D.C., Florida and/or California do not have similar laws.

Greg Bledsoe, Tulsa, OK

____________________

Oklahoma Statutes Citationized
 Title 21. Crimes and Punishments
   Chapter 39 - Oklahoma Law on Obscenity and Child Pornography
       Section 1040.13a - Soliciting Sexual Conduct or Communication with Minor by use of Technology - Penalty - Jurisdiction
Cite as: O.S. §, __ __


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A. It is unlawful for any person to facilitate, encourage, offer or solicit sexual conduct with a minor, or other individual the person believes to be a minor, by use of any technology, or to engage in any communication for sexual or prurient interest with any minor, or other individual the person believes to be a minor, by use of any technology. For purposes of this subsection, "by use of any technology" means the use of any telephone or cell phone, computer disk (CD), digital video disk (DVD), recording or sound device, CD-ROM, VHS, computer, computer network or system, Internet or World Wide Web address including any blog site or personal web address, e-mail address, Internet Protocol address (IP), text messaging or paging device, any video, audio, photographic or camera device of any computer, computer network or system, cell phone, any other electrical, electronic, computer or mechanical device, or any other device capable of any transmission of any written or text message, audio or sound message, photographic, video, movie, digital or computer-generated image, or any other communication of any kind by use of an electronic device.

B. A person is guilty of violating the provisions of this section if the person knowingly transmits any prohibited communication by use of any technology defined herein, or knowingly prints, publishes or reproduces by use of any technology described herein any prohibited communication, or knowingly buys, sells, receives, exchanges, or disseminates any prohibited communication or any information, notice, statement, website, or advertisement for communication with a minor or access to any name, telephone number, cell phone number, e-mail address, Internet address, text message address, place of residence, physical characteristics or other descriptive or identifying information of a minor, or other individual the person believes to be a minor.

C. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense pursuant to this section shall not constitute a defense to a prosecution under this section.

D. Any violation of the provisions of this section shall be a felony, punishable by a fine in an amount not to exceed Ten Thousand Dollars ($10,000.00), or by imprisonment in the custody of the Department of Corrections for a term of not more than ten (10) years, or by both such fine and imprisonment. For purposes of this section, each communication shall constitute a separate offense.

E. For purposes of any criminal prosecution pursuant to any violation of this section, the person violating the provisions of this section shall be deemed to be within the jurisdiction of this state by the fact of accessing any computer, cellular phone or other computer-related or satellite-operated device in this state, regardless of the actual jurisdiction where the violator resides.

[rwarn17588]

Beats the hell out of me. What Foley did is certainly inappropriate. But whether it actually broke laws remains unclear.

For more information on this topic, see this thread.