Thursday, October 05, 2006

Where's 'Berto Now? -or- A Tale of Two Standards

It seems that even though the esteemed Speaker of the House has asked for an investigation into disgraced former Rep. Mark Foley, there are actually reports that posit that he may not have broken any laws, or that it is unclear if he actually did break any laws.
"We've been looking at this, and it's just not clear," said Ernie Allen, president of the National Center for Missing and Exploited Children. "There are a host of statutes involved."
Excuse me??
David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, agreed.

The new laws against use of the Internet to entice children have added an additional level of uncertainty.

"There are a bunch of new laws against using the Internet," Finkelhor said. "Someone has to go through them to see what is there."

Exactly what Foley has done is unclear. A series of Internet instant messages between the former page and the congressman who used the online name "Maf54" graphically discussed male-to-male sex.

For those who are interested, here are some sections of the newly codified Adam Walsh Act**:
Section 111 (7)(C) -and- (H) -and- (I)


(A) GENERALLY- Except as limited by subparagraph (B) or (C), the term `sex offense' means--

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;
(7) EXPANSION OF DEFINITION OF `SPECIFIED OFFENSE AGAINST A MINOR' TO INCLUDE ALL OFFENSES BY CHILD PREDATORS- The term `specified offense against a minor' means an offense against a minor that involves any of the following:
(C) Solicitation to engage in sexual conduct.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
(14) MINOR- The term `minor' means an individual who has not attained the age of 18 years.

Clearly, the Age of Consent (AOC) for federal law is 18.

This is not including state laws. Regardless if the page was 16 in D.C., Foley was in FL in one Instant Message conversation; Florida it is 16 for sex with other young people, but 18 if the "partner" is 24 or over. In the District of Columbia it is 16. In Delaware (he was there during one of the chats), it is 18.

Flordia law expressly prohibits
anyone from ''encouraging, offering or soliciting sexual conduct'' over the Internet with anyone under 18. Child predators face a minimum of five years in prison and a $5,000 fine, with steeper penalties for repeat offenders.

Since Foley used the Internet to send messages to a minor who was located in a different state, that triggers the old "commerce clause" which gives the Federal government jurisdiction.

So - that brings me to my original question: Where, oh where, is ol' Berto now? I thought he promised to crack down on sex offenders and those who would prey on our children?

If 'Berto and the DOJ guys think they can just wait this one out, or anyone who thinks that this has no merit, I point you to the following caselaw:
In U.S. v. Murrell (11th Cir. 2004) it states Foleys case to be one of an "attempt" and quotes U.S. v. Bailey 228 F.3d 637 (6th Cir. 2000);

"{T}the Sixth Circuit addressed this very issue. The defendant in Bailey contended that attempt made under 2422(b) "requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victims to commit sexual acts." Id. at 638. In response, the court held:

*4 While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade. Defendant Bailey's attack is therefore meritless."

Which brings me to my second question: Is this going to be a situation in which we see (yet again) that there are two sets of standards - one for commoners and one for the ruling class? Justice demands that there not be. Unfortunately, we are living in Bizarro-World where people are charged for "sex crimes" and did something ridiculous, like taking a photo of one's *own* 1-year old infant, but not a REAL and actual sex crime. More unfortunately, it is not as uncommon as we might like to think.

If Foley is charged either by the feds or the state it will be a stiff sentence, if they go by the law. When Mark Foley gets out of prison, his troubles will be far from over. It is not uncommon to be charged with -both- federal and state crimes, then to do time in the federal system and be transferred upon release to the state. Well, at least there will be plenty of time for some light reading and introspection, non?

** The AWA will be codified as: Public Law 109-248, however, it is not online yet; that is why the link goes to the (now passed and signed by the president) bill HR 4472.

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