Critics are demanding that Representative Mark Foley (R-Fl.) face “the full weight of the criminal justice system” for his explicit e-mail and text messaging exchanges with Congressional pages, says the New York Times. The messages made public to date stopped short of soliciting sex, but some were graphic and asked for descriptions of intimate actions. Several states, including Florida, make it a crime to transmit communication harmful to minors over the Internet. In the absence of physical contact, said Ohio State University law Prof. Douglas Berman, some prosecutors seeing Foley’s messages “could say, ‘This is really gross, I need to take a shower,’ but not charge” the sender with a crime.
This year the Arizona Supreme Court upheld a 200-year sentence for a former Phoenix high school teacher convicted of possessing child pornography. The teacher was not charged with transmitting pornography or with having unlawful contact with minors. Marjorie Heins of the Brennan Center for Justice said that prosecutors almost certainly had the legal tools to pursue Foley if they were inclined to do so. A Florida law makes it a third-degree felony, punishable by up to five years in prison, to transmit “material harmful to minors by electronic device.” The law defines the material broadly to include descriptions of “nudity, sexual conduct, or sexual excitement.” There is an exception for materials with serious literary, artistic, scientific, and political value.