Sex Crimes

Jared Fogle's Arbitrary Punishment

Looking at pictures should not be treated like a violent crime.


Given the penalties Jared Fogle faced under federal law, it's not surprising that the former Subway pitchman last week agreed to plead guilty to receiving and distributing child pornography as well as having sex with a 17-year-old prostitute. But the large disparity between state and federal penalties for these offenses highlights the arbitrariness of our criminal justice system, especially when it comes to crimes that involve sex and children.

Unlike his associate Russell Taylor, who ran his charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at pictures and video of "minors as young as approximately 13-14 years" who were "secretly filmed in Taylor's current and former residences."

Taylor produced that material "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." He also allegedly gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6 that Fogle "on one occasion" showed to "another person," which seems to be the basis for the distribution charge.

In Indiana, where Fogle lives, possessing child pornography can be treated as a misdemeanor punishable by at least six months in jail or a felony punishable by up to three years in prison. Sharing child pornography is a Class C felony punishable by two to eight years in prison. 

Under federal law, by contrast, receiving child pornography, which could mean looking at a single image, triggers a mandatory minimum sentence of five years. The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are very common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos.

The charges against Fogle say he had sex with a 17-year-old "escort" at two New York City hotels in 2012 and 2013. The age of consent in New York is 17, so the only state offense he seems to have committed on those occasions is  patronizing a prostitute, a Class A misdemeanor punishable by up to a year in jail.

Fogle's plea agreement says he also had sex with that girl when she was 16 and with another prostitute the same age—acts that in New York qualify as rape in the third degree, a Class E felony punishable by probation or up to four years in prison. Under federal law, by contrast, Fogle is guilty of traveling across state lines "for the purpose of engaging in any illicit sexual conduct," which is punishable by up to 30 years in prison.

In short, while Fogle might have received a sentence as short as two years under state law, under federal law he was guaranteed to get at least five years and could have been sent to prison for as long as 50 years (assuming he had to serve sentences for the two charges consecutively). Under his plea deal, he still faces that five-year mandatory minimum, but prosecutors have agreed not to ask for more than 12.5 years.

Although the decision to federalize this case had a dramatic impact on Fogle's likely punishment, the official reasons for doing so have little or nothing to do with the gravity of his offenses. The fact that he had sex with teenagers in New York rather than Indiana does not make his actions worse; neither does the fact that Taylor used "camera equipment, computers, cell phones, and storage media manufactured outside the State of Indiana."

Fogle's behavior—especially his failure to report Taylor's voyeuristic activity, which allowed it to continue—was surely reprehensible. But the penalties he faces are similar to Indiana's penalties for sexually assaulting a child, something neither he nor Taylor is accused of doing. Looking at pictures is not a violent crime, and it should not be treated like one.

© Copyright 2015 by Creators Syndicate Inc.

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  1. Looking at pictures of young teens undressed but otherwise not engaged in any sexual activity

    1. The article says he received commercial child pornography containing minors as young as 6, and that he shared it with at least one other person, but the worst thing the article can call his behavior is reprehensible.

      I agree with the point that he shouldn’t be prosecuted for sex with a prostitute. I agree that adulthood is set at an arbitrary age that varies by locale. If 16 is an age of consent, okay.

      But fuck you if you think 6 is an age of consent to participate as a subject of commercial child pornography. Everyone is up in arms about the sex with 16 and 17 year old hookers while completely ignoring this part of the article. The real outrage here shouldn’t be draconian punishments. It should be that those potential punishments, compared to the mild punishments for child porn allowed Fogle to avoid punishment for the thing that he actually did that he should be punished for.

      Someone pointed out that mentioning child porn gets everyone in a tither. I’d counter by saying that prostitution is the magic word to get Reason to get all worked up and turn a blind eye towards the real issue going on.

  2. If Fogle was having sex with the author’s underage daughter or looking at photos of the author’s daughter when she was as young as six years old, the author be signing a different tune. Each minor that Fogle had sex with or viewed a picture of is a victim whose life has bee ruined.

    The Federal sentencing guidelines are more in line with Fogle’s offense that the state guidelines. The author sounds suspiciously like a troll that fabricates excuses for pedophiles.

    1. If you believe the feds are all worried about children, I have a bridge to sell you. Federal criminal law is fucked up. The federal crooks in congress passed a human sex trafficking law this past spring. It allows the federal asshole prosecutor to charge people with sex trafficking if they solicit or have sex with another adult in exchange for money or anything of value. It carries a 20 year minimum mandatory sentence. And mandates that the defendant forfeit all of his assets and his home to the federal government scum bags. Even if the person is eventually found not guilty they still lose all aforementioned assets. It also allows the federal government to seek the death penalty. Remember, this is just for soliciting sex from another adult!! Soliciting sex from another adult used to be a petty offense under state law. However, now the states are all rushing to pass a similar law to this federal bull. This new fed law exempts all government workers from any prosecution for any sex offense.

      1. “This new fed law exempts all government workers from any prosecution for any sex offense”

        Link to this law please

        1. No prosecutor would ever bring charges against a well connected fellow government employee. Just like the IRS does not go after government workers for unpaid taxes. Thus, all government workers are exempt from criminal prosecution under any federal or state statute. It is the unwritten part of law. Nuf said!

    2. “Each minor that Fogle had sex with or viewed a picture of is a victim whose life has bee ruined.”

      First of all, how do you know the sex worker’s life has been ruined? Unlike most of the interwebz, we at Reason are generally supportive (though not always) of sex workers? The fact that she is 17 seems irrelevant.

      Second, who is the jack-ass telling the kids “Jared was looking at you naked!” How do these kids know they were being filmed? Their life is fine, until someone tells them and they spend the rest of their life afraid of mirrors and clocks. They the “life ruiner” is the person telling the kid shit they dont need to know.

      1. I’m talking about people that solicit or have sex with other adults. That is what this new federal law is really aimed at. They also want to put dating sites like match out of business. The usual big government suspects authored this new sex trafficking statute. Here are just some of them for you: Jim Sensenbrennar; John Coryn; Ted Poe; Diane Feinstein; Mitch Mcconell; and dozens of others. I probably got some of the spelling of these names wrong. And the list of these fed politicians is far from complete. And Obama signed it, without even reading it, I would assume. Just like the expensive, high deductible Obamacare.

    3. edrebber –
      no one is saying he’s not a sick fuck. You just have to remove emotion and rationally examine the pyschosis behind our laws. The point of most objections to far reaching federal laws is that they are all slippery slopes and certainly allow for emotional interpretation and eventual abuse by authority. What you need to do is consider the most extreme application of these blanket laws taken and applied to their fullest penalty. Perfectly innocent people are going to start frying under these laws eventually.
      He is getting punished for having consentual sex with a young girl. He is disgusting and he is now out of a job. Looking at pictures, in all rationality, should not be against the law. It is just disgusting. kind of like the average American savage looks at carnage and destruction of every type all day long as long as the news gets ratings for it.

      1. I agree, it is these types of draconian laws that swell our prison population. No wonder we have the world’s largest prison population. I just wish the politicians and judges that allow these types of laws, would get sentenced under them, when they violate these types of laws on a regular basis. Same for police and prosecutors and other members of the executive branch of government, that routinely break the law and get away with it.

      2. no one is saying he’s not a sick fuck.

        I am. He’s not a sick fuck. He likes teenagers. They are sexually mature, our society’s infantilization of them notwithstanding.

        1. Yep. When I was in high school I knew plenty of hot horny teen sluts. Some of those girls were extremely depraved by the age of 15.

          1. Where did you go to school? I ask for a friend…

          2. Had only I hooked up with those girls when I was a teen. I guess I missed the boat back in the day.

        2. I agree. But your comment plus your user name is priceless.

    4. Hey, no problem. I’ll tell you what, since you object to his behaviour you should agree to personally pay for his incarceration. About $20k per year. Leave the rest of us out of this.

      You object to this. You should pay for it.

    5. You sound suspiciously like a troll who wanders about comments sections accusing anyone with a sense of justice of being a pedophile. Your gang of hysterics and sadists are beginning to lose their influence and to be revealed for what they are: fascists!

  3. I do agree with the overall intent of this article. But of course, as soon as “child porn” is mentioned everybody loses their fucking minds. But having sex with a 16 year old isn’t “sick”. There are certainly worthy discussions about what should the age of consent be. And of course if force is used in keeping 16 or 17 year olds as prostitutes, that is an awful crime. But 16 and 17 year olds can be as physical developed as any 27 year old.

    And is it a federal crime if I drive from KCK to KCM to commit a liquor store holdup? It is one thing to drag girls from state to state against their will for sex crimes (and I believe kidnapping is already a serious crime). But the whole interstate thing because one person travels to another state to do the crime is a bullshit federal issue. If he lives in Indiana, but commits the crime in NY, NY should extradite him and try him there. Simple.

    Distributing is also pretty bogus, BUT I don’t have much sympathy once he say what is allegedly on the flash drive. That sounds pretty fucked up.

    1. Federal law states that extending your middle finger at someone is an act of violence. Unless you are a government employee. Then you can do whatever you want and face no consequences. That’s our government assholes for you! It’s do as they say, not as they do.

    2. John Walsh, who used to host Americas Most Wanted, lobbied the feds for the five year minimum sentence for looking at porn. It is not a defense that someone else put it on your computer, or that you stumbled upon it by accident while looking at adult porn. Even looking at adult porn is a felony under federal law, and in certain law and order police states like Florida.

      1. Mens rea.

    3. But 16 and 17 year olds can be as physical developed as any 27 year old.

      Well, and even younger individuals can participate/consent to “sexual” activities that won’t intrinsically ruin their lives.

      Billions of people own, Houses of The Holy,Blind Faith,Virgin Killer,Nevermind, etc. I doubt those kids were intrinsically warped as a result of people having taken advantage of their inability to consent.

  4. *once he SAW what is allegedly on the flash drive.

  5. “so the only state offense he seems to have committed on those occasions is patronizing a prostitute”

    I hate New York. Only in that shithole city would the criminalize talking down to a hooker. Freedom of speech! What the hell! Why shouldn’t it be legal to be sarcastic and patronizing to anybody, even a hoor!

    1. Well, the state of Florida is probably more of a police state than any other state nation wide. They have a minimum mandatory sentence for all criminal offenses. Of course the government people are all protected from such draconian sentences!! For example, if a person leaves the scene of an accident that only results in more than 50 dollars in damage to property, the person must serve at least four years in prison. If you are charged with possession of a Marijuana cig, you must serve at least five years in prison. That’s the law and order pro police state people for you.

      1. Impressive.

      2. That can’t be true. Even for Florida.

    2. I don’t patronize prostitutes. I treat them as equals.

  6. I’m just trying to educate the people on what a bunch of scum bag hypocrites we have in government. Here’s another example for you: Over 350,000 current and former federal workers owe the IRS 3.5 billion in unpaid taxes. Yet, the IRS gives them a free pass and makes no effort to collect this amount. If they were not government actors they would be serving decades in prison.

  7. I’m sorry, but if you participate in any way in child porn; you are in the chain of exploitation. While I agree that the degree of your participation matters in sentencing, I am taken aback that anyone would defend anyone involved in this chain of events. He is mildly less awful than the person who took those pictures.

    While I embrace adult pornography as a liberty and matter of speech, the moment that a participant is unwilling or unable to give consent to participate (children cannot reasonably consent), it is unlawful…period.

    Should he get as much as someone who actually physically assaulted a child? No. But he should definitely get a serious sentence that is nearly as bad as the person who took the photos.

    1. I’m more focused on the draconian sentences of adult porn and solicitation offenses. And how about strict mandatory minimum prison sentences for politicians that abuse their power and engage in public corruption? We would never get them to agree to these ideas!! Hillary, will never get prosecuted for those email offenses.

    2. “…if you participate in any way in child porn; you are in the chain of exploitation.”

      Define “child porn”. If you were to simply say having sex or sexually molesting prepubescents, fine. But is sex with a 16 or 17 year old also “child porn”? Is looking at pictures of undressed children (of any age), where they were *not* sexually molested, is that “child porn”, too? What about altered photographs, again where the actual child was in now way molested, or simply drawn pictures or cartoons of apparently underage children, or even merely prose text describing sex with underage children. In these cases, again, no actual, living child was harmed or molested. Are these also “child porn”, and part of your “chain of exploitation”?

      While such activities say much about the psychology or state of mind of the viewer, most of these are not properly considered crimes, as no harm is being done (in most of these cases) to an actual child. It’s important to separate the merely moral implications from the criminal actions. We as a society can look down on people and ostracize those who seem to have a pedophiliac mentality, but putting them in jail when they haven’t committed any actual crime is oppression and tyranny. We can hardly take the high moral ground when we’re endorsing immoral actions ourselves.

      1. In Spain and France it’s commonplace to see boys and girls as old as 10 completely naked on the beach, and females of any age topless. Therefore I tend to agree that seeing a child or adolescent nude, whether a picture or in person, is not a child sexual offence. Are there pervs on the beach getting their jollies? Certainly, but how would you know and how would you prosecute said sickos? Occasionally even grown men along the Mediterranean are walking around past children with their ball sacks dangling in the wind. Does he get prosecuted for public indecency and sexual assault on children? Maybe it has more to do with America’s highly irrational puritanical view on nudity than it does sexual assault. What’s true is the gross bastard secretly taking photos committed a crime against the children’s right to privacy. That is the offense Fogle was complicit in by possessing the photos. In this regard, though fat boy viewed the images and got a sick sexual rise out of viewing them , it does not constitute sexual assault, it constitutes voyeurism.

        1. Given the popularity of reality TV, I would say most of the U.S. Are voyeurs.

    3. “But he should definitely get a serious sentence that is nearly as bad as the person who took the photos.”

      J. Haidt* has test cases for you. One is of a man “having sex” with a chicken (the store-bought dinner variant). The other is of a brother and a sister (both over 18) having sex using perfect contraception. Should any of that be illegal? Is it immoral? (Particularly, can the brother and sister consent, or does their behavior prove that they are not of sound mind?)

      `*The Righteous Mind. I could be slightly mistaken, these examples a fairly standard, and I probably read them elsewhere (too).

  8. Sometimes you have to ask yourself what the hell writers at Reason are thinking? And when I say sometimes I mean every day. No matter how hard I try and sympathize with Libertarians, they just have to kick me in the balls constantly. Is there a decent Libertarian web mag that isn’t so fringe? I guess fringe and libertarian are synonymous.

    The big articles of the day: Jared got screwed because he likes to screw minors and Uncle Sam unfairly hates that, and hell hath no fury for a homosexual libertarian who can no longer get his prostate play from rentboy man whores. Release the hounds!

    You can see this is wholesome thought provoking stuff. I just can’t imagine why Libertarians don’t get elected, or for that matter, don’t even beat the margin of error in polls? Talk about a niche brand. It must take years of yoga practice to screw yourself so much.

    1. Garagefather:

      I’m talking about adult men looking for adult women on dating sites that the government wants to ban like match and other dating sites. Lots of people like you want to live in a police state. Until you find yourself looking at the ass end of a mandatory minimum beef, then you want the libertarians to come to your side and support you. Same for all other law and order nuts. They never practice what they preach. They are all spineless hypocrites. Prison for everyone except for them and their friends and family.

      1. I wasn’t referring to your comment. I have not read it.

        I was commenting on the fact that Reason spends a lot of time shooting themselves in the foot with the stuff they champion if their wish is to convert people to the cause.

        I am smart enough to understand the point the author is trying to make here about draconian sentencing, and to understand the point about how legalizing prostitution would have better overall outcomes for everyone involved (even though the article was talking about gay prostitution which is even more fringe and unrelatable), I am just making a point that these cases are all at the very fringe of already fringe concerns, and they will not appeal to the masses or convert anyone to the cause because it just comes off as eccentric and irrelevant to average people, if not a bit perverted.

        And lets face it, the libertarian party needs millions of average people if they ever want to get anywhere. Perhaps that is not the goal? Perhaps Libertarians enjoy being considered fringe and forever being the odd man out? I guess it could be similar to the person who gets their face tattooed and gets giant gauges in their ears and mouth. They want to be considered unusual and nonconforming and don’t care if they never get any real respect from anyone but their own fringe clique.

        1. Garagefather:

          See further below for my response.

    2. Why would it be acceptable to punish adult male (homosexual) prostitution?

      1. I hate to see anyone sentenced under such draconian sentencing practices.

    3. So apparently you missed the “one” article Reason once ran on a cop that shot an unarmed man and wasn’t even indicted. Are that one time they complained about the NSA spying on us. Or I seem to remember that one author wrote something unflattering about Hillary, but that could be my mind playing tricks on me!

      FFS I am still on Team Red and sometimes I get frustrated with Reason (but everybody on here gets frustrated at everybody else, every day for no damn good reason, but what the hell!). But I guess putting gays in jail because they voluntarily engage in sex with other gay men for money is a worthy function of govt. And NO ONE here is defending Fogle nor real child pornography. But it is important to make sure that we separate true pederasts from just a guy who fucked a 17 year old.

      You know liberty and stuff.

      1. Liberty must prevail to have a free society.

      2. Oh fuck off, socialist pig.

      3. See above for my clarifying response to @jrom.


        In case you haven’t put it together the reasons why Libertarians are always frustrated with each other, consider why there are 400 different types of Libertarians. They all have their fringe causes and tend to alienate the rest by focusing too much on the specifics of those causes, which inevitably limits the possibility that the Libertarian party will ever move beyond the fringes. I believe this is especially exacerbated by the accumulation of very leftist Libertarians at places like Reason. They only care about lefty social justice issues which would correct themselves if the more core Libertarian ideas were implemented. Instead, these fringe issues become the focus and alienate right wing Libertarians who care about the core issues and understand that the fringe stuff will fix itself if the core is implemented, all without the majority having to stomach the fringe shit. Live and let live does not mean we have to embrace the behavior of minuscule minorities. It means do what you want as long as it doesn’t hurt me and part of that is to please keep the fringe shit private. I will do the same.

        They say the Republican party is always shooting itself in the foot with infighting and that is hard to argue against. But, if that is the case, Libertarians are always shooting themselves in the head by comparison.

        1. i appreciate your point. all parties have those who cling to their pet issues. most republicans are not creationists, but most creationists are republicans, for example. libertarians do suffer from the fact that most who identify as libertarian are more ideological about it… because, as long as there is little chance of winning an election, those who are just looking to pick sides will chose one of the two with a chance of winning. (or they are more against one side, and see a libertarian vote as “wasted”)

          that said, over – criminalization, and excessive sentencing are core ideals. i appreciate that you don’t think the specific examples being presented are palatable enough to draw new people, but there needs to be some allowance for this discussion, if there is to be any honesty. is there a place where you draw the line for over-criminalization, or is the line just for talking about it? is the author wrong for pointing out that he faces penalties equivalent to an actual sexual assault of a child for looking at pictures?

          where do you draw the line for calling something “fringe?” it wasn’t all that long ago that the idea of gay marriage was considered “fringe?” it, similarly, did not apply to most people, it made some people very uncomfortable to talk about… etc. etc. “fringe” people might stick to issues they care about… but where do you draw the line for telling people what they care about is not helpful?

        2. Garagefather:

          You make a lot of good points. However, I’m not a left winger. For example, I oppose any type of gun control, I want lower taxes, less government employees, less government spending, and strong border security. I also think Obama is a failure as a president on most issues. I do tend to be more liberal on social issues. I just want government to leave people alone.

    4. Shorter garagefather: I’m not a libertarian and got my talking points from my Team captain.

    5. garagefather:

      prostitution should not be a crime. (consensual sex between adults – who cares if there is money involved?) and things that should still be crimes, should have sentences that are more representative of the offense. (looking at a picture – that does not include any abuse or sexual context beyond being naked – might be wrong, but is it really 5 year minimum wrong?)

      how are these two concepts “kicking you in the balls?” libertarians are not suggesting that prostitution or looking at inappropriate pictures are morally just… just that they represent the kind of thing that is none of the government’s business. if you can’t distinguish that our view is based on what should be legal, and not what is “right,” then you are not trying all that hard to “sympathize.”

      1. See response from above, pretty much responds to your points.

    6. Libertarians champion what’s right, not what’s popular.

  9. One thing the author is leaving out here: it wasn’t just ONE underage girl Fogle had sex with.

    He’s been traveling to NYC for sex with children since 2007. The continued acts along with the images (pattern of conduct) are what they threw the book at him for.

    The images and videos they found in his possession are ones a close friend of his made and shared with him … apparently Jared actually had met and knew some of the minors who were on the flash drive … and the story doesn’t go on to say HOW WELL he knew the minors in question.…..ornography

  10. No objective basis for categorically making sex with a 16-year old a criminal offense, nor for considering each such case – involving money or not – reprehensible.

    1. Sevens:

      You talk out of both sides of your mouth! I don’t know if you are pro liberty or pro police state?

  11. He traveled across state lines to have sex with children.

    If there is any sort of government malfeasance here is that he’s getting off too lightly, only for child porn and not sex trafficking.

    1. sex with children

      Category error fail.

    2. The child was 17 and old enough to consent in New York under state law. However, under this new federal law, even if the woman was 57, it would be a felony with a 20 year minimum sentence. The new federal law, which was signed by our racist president in June, calls all form of paying for sex, a human sex trafficking crime. Only government workers can avoid all criminal liability by using their connections. You know the good ole boy system. Crooks looking out for other crooks in government. Just like IRS does not go after government people for unpaid taxes.

  12. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go? to tech tab for work detail,,,,,,,

  13. Was this article fact checked? Fogle wasn’t just looking at dirty pics, he admitted to multiple rapes on underage children. I’m missing the point on why is this author defending this criminal. I’m sure the author would have a different attitude if the victim was his 16 year old daughter.

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