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Experts: Too soon to say if lurid e-mails were a crime

By Ann O'Neill
CNN
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(CNN) -- Sexually charged, yes. Inappropriate, without a doubt. The instant messages reportedly sent to teenage former pages by a Florida congressman were tailor-made for a political scandal.

But were they a crime?

Rep. Mark Foley abruptly resigned September 29 as ABC News published e-mails and lurid instant messages that the six-term Republican allegedly exchanged with teenage boys.

"As a general observation, Foley's conduct is morally and politically a disaster, but whether it's a crime is far from clear," said CNN legal analyst Jeffrey Toobin.

Federal and Florida authorities are investigating. Foley has not been charged with a crime. And that's about the only thing that is certain, Toobin said.

"I think the only appropriate thing to do is raise questions at this point," he advised. "This whole thing broke about a week ago. This is something that takes time."

FBI agents spent 2-1/2 hours Tuesday questioning a former page who reported receiving sexually explicit instant messages from Foley, his lawyer said.

But right now, Toobin said, there are too many unknowns to draw any quick conclusions.

Toobin: A time for questions

"We don't know the precise nature of his relationship with these pages. Was there any physical contact? His lawyer said there was no physical contact, but it's hardly the last word on the subject."

"What ages were the pages when he was involved in them? What states they were in? What is the full range of contacts between Foley and the pages? E-mail? Instant message? By telephone? In person? All that is part of a comprehensive and fair investigation," Toobin said.

Other legal observers offered similar takes on the case.

"It's not a crime to do things that are considered sleazy," said Kendall Coffey, a former U.S. attorney in Miami, Florida.

"Doing things that are considered deplorably sleazy don't become crimes until the facts meet specific elements of the statute."

Federal authorities investigating the Internet seduction of minors generally require a person to meet, or at least attempt to meet the target with the intention of engaging in sex before making an arrest, said Coffey, who frequently comments on criminal law for CNN.

"It requires that the suspect take a substantial step," he said. "That's why the feds look for the meeting. If you have nothing but a 16-year-old who received e-mails, you don't have a crime."

Many states pattern their laws after the federal statute, Coffey said.

The content of the initial e-mails, as published by ABC News, might appear innocuous or ambiguous. But to an expert in child exploitation and sexual abuse investigations, they could raise a red flag, Coffey said.

"The e-mail was certainly not indictable, but it's questionable," Coffey said. "An experienced professional would have insisted that this requires a meaningful fuller inquiry."

Starting with chitchat

In his experience, Coffey said, those experts refer to similar initial contacts as the "grooming phase" of an Internet seduction. "It starts with chitchat, then moves up the ladder to the pitch for the face to face," Coffey said.

"People who are engaged in initiating a contact that they know will ultimately be seen as inappropriate are extremely careful and measured in the early phases and become more aggressive in the choice of language if they receive positive feedback," Coffey explained.

In such cases, federal authorities have gone undercover to pose as minors. If a meeting is arranged for sex, the feds swoop in.

Foley's attorney says the former congressman has not engaged in sex with a minor.

But state laws could come into play that make sending explicit or "harmful" materials to minors a crime.

E-mails and instant messages published by ABC suggest Foley communicated with boys in California and Louisiana, and may have initiated those contacts from Washington and Florida.

However, interpretations vary in Florida on what constitutes a seduction, and whether the law there applies to explicit material transmitted to minors beyond the state line, Coffey said.

In California, it is a crime to send harmful matter to minors by telephone messages, which would include instant messaging. The statute also includes language prohibiting sexually explicit material, said Los Angeles criminal attorney Mark Geragos, a frequent CNN guest.

Coffey said that Foley's quick retreat into rehab would be of no help to him legally. Foley's claim to have been molested by a clergyman as a teenager also would do little to help any potential defense, he said.

"Past suffering as a victim is no defense, nor is e-mailing under the influence," Coffey said. "That had no value legally and appeared to be a long-shot public relations strategy."

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Mark Foley resigned from Congress and went into rehab when news of the scandal broke. He hasn't been charged with a crime.

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