Legal Aspects of Foley Actions Not Clear-Cut Prosecutors are exploring whether former Rep. Mark Foley (R-FL) broke the law by sending explicit Internet messages to congressional pages. Legal experts say the behavior, though inappropriate, does not necessarily violate any laws.

Legal Aspects of Foley Actions Not Clear-Cut

Legal Aspects of Foley Actions Not Clear-Cut

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Prosecutors are exploring whether former Rep. Mark Foley (R-FL) broke the law by sending explicit Internet messages to congressional pages. Legal experts say the behavior, though inappropriate, does not necessarily violate any laws.


NPR's Tovia Smith reports.

TOVIA SMITH: State laws vary widely on the issue. In Florida, for example, it's illegal to even talk about sex acts to minors. But Detective Mitchell Nixon of the North Florida Task Force on Internet Crimes Against Children says there's still room for interpretation. So taking one of Foley's alleged conversations as an example, would Foley have crossed the line when he complimented a minor on his great legs and suggested he may need a massage?

MITCHELL NIXON: No, that would be more inappropriate. I mean you're not talking about any specific sex acts now.

SMITH: Then at about 7:46 he allegedly asks if any girls engaged in a certain kind of sexual activity with him over the weekend.

NIXON: Oh, there you're starting to skirt the line there.

SMITH: So then he's asking him if he had engaged in masturbation over the weekend.

NIXON: Now you're starting to get where an aggressive prosecutor would start looking at the case, yeah. When you start talking about, you know, masturbation or intercourse or any types of specific sex acts, then yeah, you're way past inappropriate and you're into illegal territory.

SMITH: The conversations that have been published get much more explicit from there. But Nixon says what prosecutors might focus on most is whether there's any talk of getting together. Most states and federal law draw the line there at enticing a minor to engage in sexual activity.

NIXON: Any time that you move out of the fantasy or the discussion stages into a more concrete - let's actually meet - you know, you're now into the luring area. You're actually trying to make contact. When you try to physically touch the child, you've changed the ballgame at that point.

SMITH: First Amendment advocate Harvey Silverglate says the law is so broad and vague that even innocent sexual banter could easily be turned into a crime.

HARVEY SILVERGLATE: We are dealing in an area of the law that can be a trap for the unwary innocent, as well as for the guilty. My view is that mere words should not be a crime. Truth is, there's really no harm from mere words.

SMITH: In recent years, some laws targeting child predators have been challenged on First Amendment grounds and have been overturned. Professor Peter Swire of the Moritz College of Law at Ohio State University says it may be a while before the law shakes itself out.

PETER SWIRE: This is somewhat like sexual harassment. What is simple flattery and what is harassment? And our society's been struggling over that since Anita Hill.

SMITH: Ultimately, UCLA law professor Eugene Volokh says what might be morally objectionable may not be criminal.

EUGENE VOLOKH: It is pretty icky when grown- ups flirt with people who are underage, but it is, generally speaking, not illegal. So the flirting alone is not the crime. The crime is attempting to have sex.

SMITH: Tovia Smith, NPR News.

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Timeline: The Fall of Rep. Mark Foley

Former Rep. Mark Foley was first elected to the House of Representatives in 1994. In this May 2005 file photo, Foley, right, stands behind John Walsh, host of TV's America's Most Wanted, at a press conference announcing plans to overhaul sex-offender laws. Getty hide caption

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As the controversy surrounding former Rep. Mark Foley (R-FL) unfolds, attention has turned to who knew what, and when. The Republican leadership says it was informed last fall that Foley had sent "over friendly" e-mails to a former page. But GOP leaders insist they did not learn of sexually explicit instant messages to other former pages until last Friday. Here, a look at key dates in the developing scandal:

1997: Tyson Vivyan, a congressional page at the time, receives sexually suggestive computer messages from an anonymous sender who turns out to be Foley, according to statements by Vivyan.

2001: A Republican staff member tells congressional pages to "watch out" for Foley, according to ABC News.

2003: Foley reportedly writes sexually explicit instant messages to a young man who formerly served as a House page. In May, Foley faces questions about his sexual orientation as he prepares to run for a Senate seat in Florida. He later drops out of the race.

Summer 2005: Foley exchanges e-mails with a former page from Louisiana. The e-mails ask about the page's age (then 16) and his birthday and request a picture.

Fall 2005: The former page contacts the office of his sponsor, Rep. Rodney Alexander (R-LA), about the e-mails. Describing the e-mails, the boy writes, "Maybe it is just me being paranoid, but seriously. This freaked me out."

Alexander's chief of staff informs the office of House Speaker Dennis Hastert's office about the e-mail exchange, but declines to show the message to Hastert's staff and to the clerk of the House, Jeff Trandahl, who administers the page program.

Alexander's chief of staff describes the e-mails as being "over friendly" but not of a sexual nature. The chief of staff says that the family simply wants the contact to stop. Hastert said last week he was not aware of "a different set of communications which were sexually explicit ... which Mr. Foley reportedly sent another former page or pages."

Trandahl and Rep. John Shimkus (R-IL), chairman of the House Page Board, meet with Foley, who assures them he was only acting as a mentor to the boy. Shimkus orders Foley to cease contact with the boy. Foley agrees.

November 2005: The 16-year-old Louisiana boy gives copies of Foley's e-mails to the St. Petersburg Times, describing them as "very inappropriate." The paper assigns two reporters to investigate. The paper says it decided not to write a story because of the seriousness of what would be implied, and because the boy and the family would not go on the record.

The Miami Herald says it, too, received a copy of the e-mails, but it decided not to go public because the messages were not sexually explicit and were subject to interpretation.

Spring 2006: Alexander mentions the Foley issue to Rep. Tom Reynolds (R-NY), chairman of the House Republican Campaign Committee. Reynolds says he raised the issue at a meeting with Hastert. Hastert says he does not explicitly recall this conversation, but he does not dispute Reynolds' recollection that he reported on the problem and its resolution.

Alexander's office also tells the office of House Majority Leader Rep. John Boehner (R-OH) about the e-mails. Boehner has given conflicting statements, but on Tuesday, he told an Ohio radio station that he discussed the matter with Hastert, who told him it had been resolved.

July 2006: The FBI receives some Foley-related e-mail correspondence in July, but concludes that no federal law had been violated, according to a law enforcement official who spoke to the Associated Press on condition of anonymity because of the ongoing investigation. The FBI official would not detail how many e-mails the FBI initially received, or whether they came from multiple sources.

A group called Citizens for Responsibility and Ethics in Washington now says that it forwarded the messages to the FBI on July 21, requesting an investigation. The group did not disclose how it obtained the messages.

Sept. 28, 2006: ABC News reports on Foley's e-mail exchange with the Louisiana teenager. Foley's Democratic challenger, Tim Mahoney, calls for an investigation.

Sept. 29, 2006: Revelations emerge of sexually explicit instant messages Foley sent in 2003 to former pages. Foley resigns. The House votes to refer the matter to the ethics committee.

Sept. 30, 2006: Hastert says he is setting up a hot line for current and former pages and their families to report problems about the page program.

Oct. 1, 2006: Hastert writes a letter to Attorney General Alberto Gonzales asking for an investigation of Foley's conduct. Hastert writes a similar letter to Florida Gov. Jeb Bush. The FBI reopens its preliminary investigation.

Oct. 2: Foley's attorney says the former congressman is battling alcoholism and has checked into a rehabilitation facility.

Oct. 4: Kirk Fordham, a former congressional aide, says that he informed Hastert's office about complaints that pages had made regarding Foley's "inappropriate behavior" before 2004. He says the complaints did not suggest Foley had been overtly sexual with pages, merely "overly friendly." Hastert's office denies receiving such information. Fordham worked for Foley until January 2004; on Oct. 4, he resigned as chief of staff for Rep. Reynolds.

Oct. 5: The House ethics committee opens an investigation into the Foley scandal. Hastert tells reporters that he did not know about the sexually explicit messages sent by Foley until last week, but he accepts responsibility for the matter. But Hastert insists he will stay on as leader of House Republicans.

Meanwhile, another former page, Tyson Vivyan of Atlanta, 26, says that he received sexually suggestive computer messages in 1997, years before the communications exposed last week, from an anonymous sender who turned out to be Foley.

Sources: Compiled from wire, NPR staff and media reports. The Associated Press contributed to this report.