Pornography

Why Is Jared Fogle's Viewing of Naked Teenagers a Federal Case?

The arbitrary decision that greatly magnified the penalties he faces

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Subway

Yesterday I noted the big gap between state and federal penalties for the offenses that Jared Fogle is accused of committing. While he might have received a sentence as short as two years for the child pornography offenses under Indiana law, he faces at least five years under federal law and perhaps much longer: The maximum federal penalty for receiving or distributing child porn is 20 years, and the maximum penalty under his plea deal is 12 and a half years.

Similarly, the charges against Fogle say he had sex with a 17-year-old prostitute at two New York City hotels. Since 17 is the age of consent in New York, the only state crime he committed on those occasions seems to be patronizing a prostitute, a Class A misdemeanor punishable by up to a year in jail. Fogle's plea agreement reportedly also mentions sex with a 16-year-old prostitute, which under New York law could be treated as rape in the third degree, a Class E felony punishable by anything from probation to four years in jail. But under federal law, the same sex acts can be punished by up to 30 years in prison.

Given the potential penalties under federal law, it's not surprising that Fogle reached a plea agreement. But you may wonder: Why was this a federal case at all? The short answer is that federal prosecutors decided it should be, possibly because they knew a case involving the famous Subway pitchman would make a big splash. The longer answer is not much more satisfying.

Although Fogle's possession and sharing of child pornography seems to have taken place entirely within the borders of Indiana, prosecutors say his "distribution and receipt of images or videos was accomplished using a means or facility of interstate or foreign commerce, and in or affecting interstate or foreign commerce." How so? The charges say Fogle looked at child pornography produced by his associate Russell Taylor, who ran his charitable foundation, "on a computer provided by Taylor." Taylor also allegedly gave Fogle "commercial child pornography" on a thumb drive. Not interstatey enough for you? Well, Fogle also "received some images and videos through text messages," delivered via a cellphone network that operates across state lines.

Still not satisfied that federal jurisdiction is appropriate? Perhaps it bothers you that Fogle's "distribution" of child pornography consisted of "one occasion" when he "displayed to another person the commercial child pornography he obtained from Taylor on a thumb drive," which does not seem to involve interstate commerce in any way. In case you harbor such doubts, here's the clincher: "The visual depictions the Defendant distributed and received were produced using camera equipment, computers, cell phones, and storage media manufactured outside the State of Indiana." Enough said.

The federal nexus for the prostitution-related charges is straightforward by comparison. Although none of the sex Fogle had crossed state borders, Fogle himself did while traveling to New York City so he could pay to have sex with teenagers. Under 18 USC 2423, "a person who travels in interstate commerce…for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both." Just in case, the statement of charges also notes that Fogle "repeatedly engaged in Internet social networking…for the purpose of engaging in commercial sexual activity"; that he "did this using an Internet email account, social networking websites containing advertisements for escorts or erotic services, online messaging services, and text messages"; and that "all of these activities used facilities of interstate or foreign commerce." 

The invocation of federal jurisdiction and the much harsher penalties that come with it seems especially arbitrary given the nature of the child pornography produced by Taylor and viewed by Fogle. The statement of charges says the 12 minors involved, who ranged in age from 9 to 16 (although the youngest seen by Fogle was 13 or 14), "did not know that they were being secretly filmed in Taylor's current and former residences." Rather, "the images or videos were produced using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." That is obviously an outrageous violation of privacy and breach of trust, all the more disturbing because of the sexual pleasure that Taylor and Fogle presumably got from viewing these images. But the production of this voyeuristic material did not involve the sexual assault of children, which would have made the crime much worse.

Prosecutors rightly fault Fogle for failing to report Taylor, saying, "If the Defendant had promptly reported to law enforcement what he knew of these activities, then the sexually explicit material involving later victims would not have been produced." Instead Fogle viewed the material, "made comments approving of this activity," and possibly encouraged Taylor to continue. That, it seems to me, is the essence of his crime, and it should not be dismissed. But I don't think it's worthy of five years in prison, the minimum that Fogle will serve, let alone 12 and a half years, the maximum that prosecutors can seek under the plea deal. Those are similar to Indiana's penalties for sexually assaulting a child, something neither Fogle nor Taylor is accused of doing.

NEXT: Caught on Video

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  1. The longer answer is not much more satisfying

    It’s no $5 footlong!

    1. Or double the meat for a dollar more?

      1. So an iguana versus a horned toad – in lizard terms.

  2. Those are similar to Indiana’s penalties for sexually assaulting a child, something neither Fogle nor Taylor is accused of doing.

    We know what incentives we’re creating when the penalty for rape is the same as the penalty for murder, right? If the penalty for looking at pictures of nekkid kids is the same as the penalty for raping little kids, what incentives does that create?

    1. H…Hitler?

      No? Am I warm?

  3. I’m all for vigorous defense of the accused, and I absolutely understand why this is all bad news, but…

    I don’t think we need to be using an ex-sandwich peddling pedophile (alleged!) as our criminal justice reform mascot. If this had been about weed or something, great. Most people can sympathize with that. Most people, however, don’t sympathize with diddling kids.

    1. So you’re saying Jared is Michael Brown. I’ll allow it.

    2. Someone say Josh Duggar? As in the ashley madison-hack-outed Josh Duggar?

    3. Yeah, I mean, I know it’s all about the principles, and I know when Libertopia arrives we’ll have to deal with stuff like this, but as the parent of a baby daughter I have an entirely new, Winchester-based perspective on this sort of thing. And for the record, the teenage pros in NYC don’t bother me; the child porn production is what creeps me out. Hell, I’m not even all that pressed about him looking at it outside of the fact that it encourages people like Taylor to go make more.

      1. It’s sounds very much like you’re saying something along the lines of we should defend free speech rights when it’s your grandmother in the dock for saying something nice to someone. Sorry, standing on principle doesn’t work that way. Defending free speech is always going to entail defending some very ugly people saying some very ugly things. Gideon and Miranda, let us not forget, really were criminals and yet their cases established some very good principles. Let us stipulate that Jared is a very bad man who did a very bad thing and deserves to be thrown under the jail for what he did – that still does not justify or excuse or allow the state to cut any corners in their pursuit of him. A corner-cutting government is about 350 million times more to be feared than any criminal. Opposing the government in this case necessarily involves defending Jared – but it’s not what he did that we are defending. What we are defending is ourselves against the time our turn in the barrel comes along.

        1. It’s the “new parent” effect. Having a daughter seems to almost guarantee it.

          1. As the new parent of a daughter, I seem to have luckily escaped that idiocy.

          2. A man takes his daughter to the doctor to get her contraception.

            The doctor asks, “Is she sexually active?”

            The father replies, “No, not really. She’s just like her mom, she just lays there.”

            1. Oooooh, NASTY!

    4. Yeah…. politically you are correct. You don’t want to plant your flag in the ground on pedofiles and rapists.

      But the also correct snarky answer is that only reforming weed penalties doesn’t exactly make for a just system.

      Besides, this isn’t a movement holding up placards. This is an article that piggy-backs on a current case that got some press in its own right to provide an analysis of just how out of whack our criminal penalties are. Jared isn’t the cause celebre… he’s the example du jour.

    5. I have absolutely zero sympathy for Jared Fogle. He can rot in hell for all I care. However, I am deeply disturbed about the reasoning behind this:

      “The visual depictions the Defendant distributed and received were produced using camera equipment, computers, cell phones, and storage media manufactured outside the State of Indiana.”

      1. Read my comment below. Sullum is not quoting everything. The complaint also alleges that Fogle was trading in pornography that was produced outside the United States and distributed over state lines via file distribution services.

        That to me is a textbook Federal case.

  4. Why Is Jared Fogle’s Viewing of Naked Teenagers a Federal Case?

    C’on, Jacob, like you don’t know. Because literally EVERYTHING is a federal case. If it’s not, it’s teh racist. Therefore…

    QED.

    1. It’s a federal case because Jared is a high-profile target and they want to use him as an example. No, not as an example of “this is what happens when you break the law, kiddies” but as an example of “OMG! All men really are rapists! Quick, Robin! To the fundingmobile!”

  5. When we are all committing our allotted three felonies a day you have to expect that some of them are going to be federal cases.

  6. It is clearly an interstate case because his Indiana cell phone was being monitored — just like everyone’s cell phones are being monitored — all the way over in Washington DC.

    And you can bet the gov agents enjoyed the pics of the teen girls they saw in his text messages.

  7. “The visual depictions the Defendant distributed and received were produced using camera equipment, computers, cell phones, and storage media manufactured outside the State of Indiana.”

    I’m not the state’s rights fetishist that many libertarians seem to be (at times of course!), but this is a stretch worthy of Mr. Fantastic.

    1. Mr Sollum is not telling the whole story here. Page 5, section 17 specifically states:

      Through Internet file distribution services, Taylor obtained and provided the Defendant with other depictions of minors engaging in sexually explicit conduct.

      (emph mine)

      If you are using any sort of internet file distribution service, you are guaranteed that your activity is crossing state lines. You may have a circle of buddies performing a crime inside state lines, but if you email plans with gmail or trade files with dropbox, your communication is crossing state lines just as surely as if you had called someone in another state.

      Additionally, Section 18 specifically says some of the material was “Produced outside the United States”. This is clearly within Federal Jurisdiction.

      The merits of this case may or may not be sound. However, Mr Sollum spends a bunch of paragraphs suggesting that the heart of the Federal jurisdiction is based on the origin of their photography equipment. That is bullshit, and a disservice to his readers.

      1. Even so, maybe proponents of federalism (of which Sullum appears to be one) would prefer not to include internet file distribution as being within the realm of interstate commerce, since such an expansive definition would cover practically every transaction today that involves the internet?

        While it isn’t unreasonable to argue that “interstate commerce” includes electronic transmissions that use out-of-state servers, the practical consequences of vastly expanding federal jurisdiction should be a top concern of libertarians.

        1. I tend to agree. But if that is Sullum’s position then he should have taken it. He should have argued that internet commerce shouldn’t be considered inter-state commerce. Instead he suggested that the only thing making this a Federal case was that the filming equipment was manufactured abroad.

          I am sympathetic to the claim that too many state matters are legislated in the federal courts. However, when picking an accused pedophile to defend, you need to be extra careful to make sure your arguments are well founded.

          Unfortunately, Sullum’s article was sloppy and poorly researched. It hurts his argument and cause far more than helping it, and does a disservice to anyone who would then try to take this argument into other arenas.

          1. Moreover not only did much of the oxygen defendant inhaled during the commission of his foul and unclean deeds originate in other states but the gravity he utilized to remain upon the earth’s surface is postulated to have originated , at least partially, from outside of these United States.

  8. The NY Daily News was at the top of their headline game this morning.

    https://pbs.twimg.com/media/CM2iGy2UkAANUHM.jpg

    Seriously… ugh. This is not a federal case. But everything’s a federal case.

    1. The college rape epidemic is the worst thing ever.

      Men getting raped in jail is funny.

      I don’t really have a point other than this pisses me off.

      1. ^this^

        Prison rape is so dern funny – herr de derp

      2. To be fair, there are numerous groups on the social justice side of the spectrum that agree prison rape jokes aren’t funny and belie a serious problem in our prison system.

        Albeit mostly because women, minorities hit hardest, but still.

  9. Although Fogle’s possession and sharing of child pornography seems to have taken place entirely within the borders of Indiana, prosecutors say his “distribution and receipt of images or videos was accomplished using a means or facility of interstate or foreign commerce, and in or affecting interstate or foreign commerce.” How so?

    Because fuck you, that’s why?

    1. Raisins, wheat, peanuts. Right?

      1. PEANUTZ GALEREEZ!#!@#$

  10. I’m safe. So far.

  11. The statement of charges says the 12 minors involved, who ranged in age from 9 to 16 (although the youngest seen by Fogle was 13 or 14),

    Shame on you, Sullum. For what reason was there to elide the facts presented in paragraphs 17 and 18, which charge Fogle with viewing “commerical” child porn involving individuals as young as 6? One can make a point concerning federalism without a mendacious attempt to minimize the depravity of Fogle’s actions.

    1. I am sorry Mulatto, but depravity is a word reserved for actions not thoughts or looking at the wrong picture.

      1. With all due respect, horsepucky.

  12. Jared Fogle let me down. I always knew deep down he was a pederast, just like every other corporate shill. But he made me believe in something, once. Now I don’t know if I’ll ever have my innocence back.

    1. First Jello pudding, now Subway sandwiches….what food is left that hasn’t been tainted?

      1. Deep dish pizza?

        1. Deep dish pizza is cursed with Original Sin – it’s endemic – so….

          Artisanal Mayonnaise?

  13. Why Is Jared Fogle’s Viewing of Naked Teenagers a Federal Case?

    Because the feds will stick their noses in everything because they’re power-hungry assholes?

  14. all the more disturbing because of the sexual pleasure that Taylor and Fogle presumably got from viewing these images.

    Why?

  15. States won’t go ahead with prosecutions on internet related cases until they’re sure the Feds aren’t going to hop in. For non-famous folks who can’t afford ridiculous bails, this can add a few months of jail at least until the ball gets rolling on a trial.

  16. I might get upset about child porn if I didnt know that the feds prosecute people for possession of drawings, photoshops and other totally fictitious depictions of child sex . Including images where there actually is no child sex, jusst sex with someone who looks young. If the images were the result of actual sexual activity which took place in the real world then perhaps possession of such images is criminal. But if they are artistic imaginings of events which never really happened then I think what is being prosecuted is thought . I am opposed to prosecuting thought crime.

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    1. Why? So the feds can make a case outnof it? You’re not gonna make a Russell Taylor out a me!

      1. I hate commenting from my phone. ….edit button.

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