Bush, Justice Dept. must indict Foley and others
Published Thursday, 02-Nov-2006 in issue 984
Beyond the Briefs
by Robert DeKoven
I’m not sure when it’s going to dawn on the media that the Foley/Hastert scandal involves some serious crimes that belong in court.
First, note that next week California voters will most likely approve the ballot measure known as “Jessica’s Law.” It will require registered sex offenders – especially violent ones – to be monitored and live in what will be RSO (registered sex offender) zones.
The sad reality is that parents have far more to worry about than the registered offenders. In October alone, San Diego judges have sentenced a local teacher and a local campus police officer for having consensual sex with students.
And now the Mark Foley matter in Congress.
This is the reality of child sexual abuse. In 98 percent of the cases, the victim knows the perpetrator. That makes the crime more damning for parents. And even more damning is when the perpetrator gets special treatment.
Foley should receive the very same treatment any U.S. citizen would receive. But he’s not. And it’s not because he’s gay.
If Mark Foley wasn’t a Republican member of Congress – and an election wasn’t next week – Foley would be in a federal jail, held on a $1 million bond. He’d face a variety of charges and a sentence of up to 50 years.
First, Foley’s electronic messages to pages seeking sex is a federal crime. Foley knows this; he drafted the laws making such use of the Internet a federal crime.
It doesn’t matter that the age of consent in Washington, D.C., is 16. Congress has federalized the age of consent. It’s 18. The feds can charge anyone with a crime if the person uses the phone, Internet, car or any instrumentality of interstate commerce.
And it doesn’t really matter that Foley did not have physical relations with the teens. “I didn’t have sexual relations with any page.” Haven’t we heard that before?
Well, federal law doesn’t require consummation. In fact, the Justice Department is pursuing indictments against men who accessed a Web site operated by a boy, who was 14 when he did it. These men who accessed his site paid him for performing sex acts on camera. They will most likely be charged with producing child pornography.
The DOJ would charge Mark Foley with creating child pornography via his messaging with pages. Under federal law, child pornography doesn’t have to be a graphic image of someone younger than 18. A written description is enough. In fact, a federal appellate court upheld a child pornography conviction where the man had simply downloaded anime (of a teen girl) from a Web site.
Some of the messages between Foley and the pages easily pass for child porn, especially given the conservative views of some Bush appointees. These are just the crimes the DOJ should charge Foley with because he used the Internet and other instrumentalities of interstate commerce.
The other crime is federal child abuse. Because Foley did his harassing on federal property, his conduct is governed by federal child abuse statutes. And federal law makes it clear that one who harasses, annoys or intimidates a minor for sexual purposes has engaged in child abuse. Foley doesn’t have to lay a hand on the child. Emotional abuse is enough.
What’s interesting is that federal law requires federal employees who work with children (pages) to report the child abuse to the attorney general. Federal law required those with knowledge of Foley’s actions to report it directly to law enforcement, not to the house speaker. But upon its being reported to him, House Speaker Denny Hastert was required by law to report the matter to law enforcement. The same duty applies to other House members on both sides of the aisle. And, of course, being a teacher (a former history and wrestling coach), Hastert is well aware of the mandatory child abuse reporting laws.
The Congressional Page Program is an education program. It makes all members of Congress teachers. And when staff report that Foley came to the page dorm drunk and abusive, that’s pretty damning stuff.
On the civil side, federal law prohibits sexual harassment in all education programs. Foley’s actions against the pages amount to harassment prohibited by federal law. Failing to act on the complaints shows deliberate indifference, and thus Congress is liable in damages.
Agree with these laws or not, but everyone seems to agree that if Foley and Congress wrote these laws, they should be held accountable for their violation.
Robert DeKoven is a professor at California Western School of Law.

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