Fogle's SUB-stantiation of charges via plea is probably best WAY to go

Fogle's SUB-stantiation of charges via plea is probably best WAY to go

Add Jared Fogle to the seemingly ever-growing list of celebrities, including Bill Cosby and Josh Duggar, sharing the headlines about their alleged sexual misconduct. Fogle, the longtime Subway spokesman, filed his petition to enter a plea of guilty two weeks ago in Federal Court in Indianapolis to child-sex charges that included distribution of child pornography and crossing state lines for illicit sexual conduct with a minor. The U.S. sandwich chain cut ties with Fogle last month after a large federal raid at Fogle's Zionsville, Indiana home resulted in the seizure of evidence relating to child pornography. According to the terms of his plea agreement, Fogle faces between 5 and 12.5 years in federal prison. He will also be required to pay $1.4 million in restitution to 14 victims ($100,000 each). The interstate travel statute carries a potential maximum sentence of up to 30 years; the child pornography charge allows for a sentence of up to 20 years, meaning without the benefit of his plea agreement, Fogle could face the possibility of up to 50 years in federal prison. Because his sentencing judge is not bound by the plea agreement, it's possible (but not likely) he could receive a sentence greater than the range he agreed to.

Fogle first became known to the public in 2000 when his Subway-driven weight loss story garnered attention from the company. He was quickly branded "the Subway guy." Starring in over 300 commercial advertisements for the company, Fogle, who claimed to have shed over 200 lbs while eating mostly Subway meals as a student, became the face of the brand and a role model for healthy eating. Fogle extended his public persona and celebrity further through the creation of his charity, the Jared Foundation that focused on improving children's health and combating childhood obesity.

Fogle's positive public persona began to unravel when on April 29 police arrested former head of The Jared Foundation, Russell C. Taylor on child pornography charges. As was later revealed by prosecutors, Fogle received multiple images of child pornography from Taylor on several occasions between 2011 and April 2015. According to the Government, Taylor created the pornography in his own home through use of hidden cameras. The images featured children as young as 6 engaging in sexually explicit conduct.

Fogle travelled as the face of The Jared Foundation to schools all over the country to speak about childhood obesity and the benefits of healthy eating. While there has been no evidence presented that he abused children directly through his foundation, evidence was presented to the Court establishing that he made foundation-related travel plans that coincided with his pursuit of sexual acts with minors. Court documents went on to reveal Fogle admitted to travelling across state lines to have, and having, sex with underage prostitutes. He often described these trips as "business trips,"[1] and the government's evidence indicated he paid for sex with minors, one 16 and the other 17, at NYC hotels. The government also suggested they had witnesses who would have testified that Fogle had offered them "finder's fees" to seek minors for him, including some as young as 14 or 15.[2] In one related discussion, court documents reveal Fogle is alleged to have said he "would accept a 16 year old girl," while stating that "the younger the girl, the better."

In addition to serving a prison term of at least 5 years (and up to 12.5), Fogle will be placed under the supervision of the U.S. Dept. of Probation upon his release, be required to register as a sex offender, undergo sex offender evaluation/treatment, and be subject to mandatory polygraph testing regarding both his sexual history and compliance with treatment. Fogle's wife (and mother of his two children) has filed for divorce, and his plea and sentencing hearing is set for November 19th.

Public opinion has run the gamut from surprise to shock to outrage, with many expressing the shared belief Fogle is getting off easy. Nonetheless, his precipitous fall and the jeopardy he is facing is a cautionary tale "writ large" not only in terms of the strict sentencing consequences that accompany involvement with child pornography, but also in terms of how very different a private person often turns out to be from the public persona we think we know. It also underscores a widely held misunderstanding: for federal child exploitation purposes, a minor is anyone under the age of 18. Because of that, Fogle can be properly prosecuted under federal law for crossing state lines to engage in activity with a 16 or 17 year old (whereas he could not have been charged for remaining in-state to engage in consensual sexual activity with anyone who has reached the age of consent — in most states 16). Although the Feds recognize an affirmative defense of reasonably believing someone was 18 in these circumstances, Fogle's purported line about "accepting a 16 year old" while preferring them younger, likely closed the door on him pursuing such a defense. The apparent ages of some of the children in the child pornography images he received likely rendered those charges all but indefensible.

As a lawyer who routinely defends clients accused of sex crimes, it's not the insistence on in-court prosecution(s) I find disconcerting; it's the non-judicial "prosecution in perpetuity" offenders are subjected to out-of-court long after their cases have been resolved and their sentences served in full. In the end, Fogle accepted responsibility for his conduct; and did so early and without prolonging the process. The judge's ultimate sentencing decision will give him credit for that, as it should. The hope here is once he has served his sentence, society will allow him to get the help and treatment he clearly needs, as we should. It's one thing to hold each person accountable for their actions. It's quite another to continue to subject them to a lifetime of retribution, long after they have made their full amends.

[1] http://www.washingtonpost.com/news/morning-mix/wp/2015/08/20/jared-fogle-another-vip-claiming-to-help-children-who-allegedly-harmed-them/

[2]http://www.nytimes.com/aponline/2015/08/19/us/ap-us-subway-spokesman-raid-.html