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Legal Aspects of Foley Actions Not Clear-Cut

STEVE INSKEEP, Host:

NPR's Tovia Smith reports.

TOVIA SMITH: State laws vary widely on the issue. In Florida, for example, it's illegal to even talk about sex acts to minors. But Detective Mitchell Nixon of the North Florida Task Force on Internet Crimes Against Children says there's still room for interpretation. So taking one of Foley's alleged conversations as an example, would Foley have crossed the line when he complimented a minor on his great legs and suggested he may need a massage?

MITCHELL NIXON: No, that would be more inappropriate. I mean you're not talking about any specific sex acts now.

SMITH: Then at about 7:46 he allegedly asks if any girls engaged in a certain kind of sexual activity with him over the weekend.

NIXON: Oh, there you're starting to skirt the line there.

SMITH: So then he's asking him if he had engaged in masturbation over the weekend.

NIXON: Now you're starting to get where an aggressive prosecutor would start looking at the case, yeah. When you start talking about, you know, masturbation or intercourse or any types of specific sex acts, then yeah, you're way past inappropriate and you're into illegal territory.

SMITH: The conversations that have been published get much more explicit from there. But Nixon says what prosecutors might focus on most is whether there's any talk of getting together. Most states and federal law draw the line there at enticing a minor to engage in sexual activity.

NIXON: Any time that you move out of the fantasy or the discussion stages into a more concrete - let's actually meet - you know, you're now into the luring area. You're actually trying to make contact. When you try to physically touch the child, you've changed the ballgame at that point.

SMITH: First Amendment advocate Harvey Silverglate says the law is so broad and vague that even innocent sexual banter could easily be turned into a crime.

HARVEY SILVERGLATE: We are dealing in an area of the law that can be a trap for the unwary innocent, as well as for the guilty. My view is that mere words should not be a crime. Truth is, there's really no harm from mere words.

SMITH: In recent years, some laws targeting child predators have been challenged on First Amendment grounds and have been overturned. Professor Peter Swire of the Moritz College of Law at Ohio State University says it may be a while before the law shakes itself out.

PETER SWIRE: This is somewhat like sexual harassment. What is simple flattery and what is harassment? And our society's been struggling over that since Anita Hill.

SMITH: Ultimately, UCLA law professor Eugene Volokh says what might be morally objectionable may not be criminal.

EUGENE VOLOKH: It is pretty icky when grown- ups flirt with people who are underage, but it is, generally speaking, not illegal. So the flirting alone is not the crime. The crime is attempting to have sex.

SMITH: Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.

Tovia Smith is an award-winning NPR National Correspondent based in Boston, who's spent more than three decades covering news around New England and beyond.