Mark Foley – the wider implications

Dateline: 11 October 2006

The resignation of Mark Foley has a number of serious implications, which are worth exploring, but first, Foley himself.

Mark Foley was one of the many gay people who was neither ‘out’ nor ‘in’. He did not declare his sexuality on his website. But it was no secret from those who knew him socially and he did not lead a double life with a wife and family living back in his district.

Sending inappropriately sexual material to Congressional pages over the internet – the allegations which triggered Foley’s resignation – and actual sexual contact are very different. Partisan allegations of ‘pedophilia’ in the mainstream media deliberately blur this. The are no allegations of sexual contact, and the young men concerned are not children. This scandal should not he confused with that of Rep. Gerry Studds* who, in 1983, was censured by Congress for having sex with a 17 year-old congressional page. Studds, by the way, did not resign and was re-elected to Congress several more times.

Using the internet to Send sexually explicit material to a minor can be illegal, under a law Foley himself championed. But there is then the question of what is mean by the word ‘minor’. In some states the age of consent is as low as 14 and in others (including Foley’s home state, Florida) as high as 18. But Foley seems to have sent most, if not all, the sexually explicit material from his office in Washington DC, where the age of consent is 16. All Congressional pages are over 16.

If Foley is successfully prosecuted under his own law, there is a delicious irony in it. But there is also a question of justice. If he can be prosecuted for talking about something which would not itself be illegal, how can that be right? Can the speech be worse than the act? Can the use of the internet make something worse than it would be in real life?
Could Mark Foley end up bringing a First Amendment challenge to his own law?

Aside from Foley himself, there is the question of the implications for the November elections. Foley’s own district – though normally secure for the Republicans – will be a top target for the Democrats. The GOP has chosen state Senator Negron as replacement candidate, but voters will have to actually vote for Foley to Negron elected.

The issue is unlikely to run beyond that one district, though. The Republican candidate for Florida governor has a double digit lead, as has the incumbent Democrat Senator. And will Republican voters in New York really turn to the Democrats because a Congressman in Florida behaved badly?

Some are already calling for House Speaker Denny Hastert to resign. It seems he knew over a year ago of some e-mails Foley sent to a congressional page. But the e-mails are innocuous: the Congressman offers to buy the young man an ice cream. It is in a series of instant messages that Foley discusses masturbation with the page, and Hastert knew nothing of these until last week.

Hastert could, perhaps, have pursued the investigation with more rigor. But the precedent of Gerry Studds must have weighed heavily on him. If one Congressman can have sex with a page why should another not offer ice cream? Hastert should not resign, at least not for this.

* since this article was published former Congressman Studds has died

Quentin Langley is editor of http://www.quentinlangley.net an academic at the University of Cardiff and is a columnist with Campaigns & Elections. This article was first published in the Common Sense series for Lake Champlain Weekly.

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