Consent
I have seen a host of otherwise intelligent people, including some who have passed the bar, making a very basic error in the Foley case. They have talked about the age of the pages as being the determining factor as to whether the law was broken, and that is not true. The age of the pages determines what law was broken, because if the individual Foley had been sending those messages to had been 26 instead of 16, with all other factors being the same, it was still illegal.
Glenn Greenwald mentioned the age of consent in the District of Columbia is 16, and then opines that if Foley had had sex with the page it would have been legal, while sending the e-mails was illegal. If the page had given his consent to either the sex or the e-mails, it would have been legal and this wouldn’t be spread all over the media. The page didn’t consent. That is the heart of the issue, the lack of consent.
In the 1983 Page scandal, both pages consented and the Congressmen were reprimanded, but there were no criminal cases because of the consensual nature of the acts.
In this case the age of the victim determines the specific law broken, as occurs in other criminal acts, not whether the law was broken. The age of consent means exactly, and only that, the age at which meaningful consent can be given. The law generally says that no one under the age of 16 can give meaningful consent.
You have sex with a 16-year-old you are not going to be charged with statutory rape, but if they didn’t consent you are still going to be charged with rape.
4 comments
Bryan,
Thank you for pointing out an important distinction.
I concur that the core issue is the lack of consent. However, if Greenwald’s interpretation of the federal statute is correct, the fact that the page was under 18 makes Foley’s actions a federal crime.
On another note, one wonders if those who believed that Paula Jones suffered sexual harassment from then-Governor Clinton will be as quick to call for the resignations of those who covered up Mr. Foley’s crimes. (I shan’t hold my breath waiting for Ann Coulter to offer pro bono legal services for the page harassed by Mr. Foley.)
Jim, there are a cyberstalking laws that would apply if it had been an adult instead of a child, and even if there were no Federal law, some of these messages originated in the state of Florida, which has some rather nasty laws about these sorts of things.
Many are calling for resignations, and that would be a very good move for the Republican Party, because this isn’t going away.
I am still unclear as to what laws specifically may have been broken. I think the media in general has done a very poor job in explaining this and has thus left itself open for Republican spin and talking points to cloud the issue. Foley’s actions are inexcusable and disgusting but the Foley is a “pedophile’ meme is shot down by age of consent in DC. What are the specific laws reguarding sexually explict IMs and email’s and how does one prove that a page who participated in dirty chat did not consent to it? Is this really a case of sexual harrasment in the workplace?
While some states have specific laws about the Internet, I can’t think of a state that doesn’t have a telephone harassment law that can be used for all communications transmitted by wire. These laws are routinely used for annoying faxes, so the jump to e-mail is not a stretch. Some states call it harassment, others assault, but it is unwanted, offensive communications.
Many people skip the criminal law and sue in civil court over this type of behavior and if it takes place as part of employment there are sexual harassment regulations that come to the fore.
Because this is Congress, and Congress has a nasty habit of exempting itself from laws, the only real avenue open is a criminal complaint in the local jurisdiction of the receiver for adults. People don’t usually bother, but the laws are in place and available if people want to use them.
Since Foley identifies his location as Florida in some of the messages, he could be charged under a rather nasty Florida law if the Feds don’t prosecute.
The main reason these laws aren’t used is the problem of identifying the source of the e-mails. In this case, the source is known, so the prosecution could go forward.