Former Subway pitchman Jared Fogle leaves the federal courthouse in Indianapolis on Aug. 19. (Michael Conroy/AP)

The accusations are spelled out in sickening detail by federal prosecutors in court documents charging former Subway pitchman Jared Fogle with possessing and distributing child pornography and “commercial sex acts with a minor” or paying to engage in sexual activity with someone who is younger than 18 years old.

Two of the victims, prosecutors said, were 16 when Fogle committed sex crimes against them. Fogle admitted to those charges and has agreed to plead guilty. But why wasn’t he charged with rape?

In many states, if a 37-year-old man victimizes a 16-year-old girl, it would be considered rape.

But the charges announced against Fogle this week were federal. And according to Tim Horty, a spokesman for the U.S. Attorney’s Office for the Southern District of Indiana, there is no applicable federal law.

“There is no federal statute for rape in this situation that would have applied,” Horty said. “What always applies is that you cannot cross state lines to engage in commercial sex with anyone under 18.”

[Jared Fogle charged with paying for sex with minors, possessing child porn]

At the state level, things are different.

According to federal documents, Fogle admitted to engaging in the criminal activity in two swanky New York hotels: the Ritz Carlton and the Plaza. According to the federal documents, the girls were victims of criminal sex trafficking through a Web site that carries ads for “erotic services.”

New York law defines the age of consent as 17, and Fogle has admitted to victimizing both girls before — and after — they reached that age. (In other places, like Fogle’s home state of Indiana, the age of consent is sometimes defined as 16.)

The New York District Attorney’s Office declined to comment when asked whether state prosecutors would consider charges against Fogle in light of the allegations revealed in the federal complaint.

But legal experts said Fogle could face prosecution in the state for statutory rape and other charges — including charges related to sex trafficking.

“I’m of the opinion that, technically, he could be prosecuted in state court, specifically New York County,” said Matthew R. Smalls, a defense attorney in New York City.

James B. Jacobs, a law professor at New York University, said that because of the dual sovereignty principle, federal and state governments can prosecute Fogle for his actions connected to Victims 13 and 14 without violating either state or federal double jeopardy prohibitions.

But a new prosecution would mean a new investigation, and according to Smalls that makes a state case against Fogle unlikely.

“In a case like this, it’s unlikely, simply because you’re dealing with rape victims and you’re dealing with victims of prostitution,” said Smalls, who has also served as an assistant district attorney for Manhattan. “The state prosecutor would really be tone deaf to ask those victims to once again tell their story and once again possibly testify in front of a grand jury or a trial jury.”

Fogle faces at least five years and up to 12½ years in prison under the federal charges.

State rape charges are punished with terms of between 1½ and four years in prison.

[The Jared Fogle case: Why we understand so little about child sex abuse]

As a legal matter, Fogle may never be charged with rape — or legally labeled with having committed that crime.

The scenario raises tough questions about the language that is being used to describe what Fogle has admitted to doing.

In the absence of a rape charge, Fogle’s actions have been described in The Washington Post and elsewhere as paying for sexual activity with victims who were younger than 18 and engaging in sexually explicit acts with minors. (Fogle has also been charged with receiving and distributing child pornography.)

But according to activist Erin Matson, what Fogle admitted to doing should be called rape. With a pen and paper, Matson edited a Washington Post story on Fogle’s charges at the breakfast table and snapped a photo. It went viral on Facebook and Twitter, with more 35,000 people sharing the image.

Matson, co-founder of the abortion and reproductive rights advocacy group Reproaction, noted that the Fogle story has highlighted a need for changing laws and editorial practices that dictate how society talks about rape.

“It’s clear that there are gaps in the way that we talk about rape, sexual assault, and sexual misconduct,” Matson told The Post in an interview. “What I think is so frustrating is that you see rape and sexual misconduct being presented in the language of consensual sex, which is really dangerous and it is definitely part of the problem.”

Former Subway sandwich chain pitchman Jared Fogle was charged and admitted to "participating in a five-year criminal scheme to exploit children," U.S. Attorney Josh Minkler said in a news conference Wednesday. (Reuters)

If Fogle does not face rape charges for the activities alleged in the federal complaint, it will be yet another example of how the law benefits the powerful and not the victims, Matson said.

“This is just a clear, unfortunate and sad example of the inadequacy of our legal framework around sexual misconduct, rape, and sexual assault,” Matson said. “Unfortunately and unsurprisingly it seems that those who stand to benefit the most are those who are considered the most powerful and well-liked among us.”

Jared Fogle, former spokesman for Subway, was charged in a federal court with paying for sex with minors and possessing child pornography. Here's a look inside the charges and what investigators say he did. (The Washington Post)