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When does thought become criminal?

When does thought become criminal?

A cop with a bent for deviant fantasy, and for pilfering data from police computers, but when do his mind games tilt into criminality…how do courts decide? 7 Dec 2015

When does thought become criminal?

A US appeal court last month established a boundary line for criminal intent, ruling in favour of Gilberto Valle, the man dubbed New York’s “cannibal cop”.

08.1n011.cannibal.c-300x300Valle used the NY police computer system to search details of a particular woman for no good reason. Elsewhere, on two chat groups, he was posting images of women and offering to kidnap and sell them, cash on delivery.

Photo: Valle in happier times.

The case against him claimed:

…in both groups he expresses a desire to kidnap, rape, torture, and eat women whom he knows. In both groups Valle also claims to conduct surveillance of potential victims and discusses his intentions to kidnap them using chloroform and ropes. And in both groups he describes the various devices he “owns” that will assist in the process. Many of the “fantasy” chats also do not explicitly state that the participants are engaged in fantasy and are as graphic and detailed as the “real” chats. For example, the “real” chats and the “fantasy” chats both include haggling over the kidnapping fees that Valle “wanted to charge,” although the prosecution argues that this haggling is unique to the “real” conspiracy…. The ‘real’ chats thus contain the same core elements as the chats the Government concedes are “fantasy.”

The US federal appeal court in NY ruled that fantasising online about kidnapping, sexually abusing, and eating women does not amount to unlawful conduct or thoughtcrime:

“A person’s “inclinations and fantasies are his own and beyond the reach of the government,” 2nd US Circuit Court of Appeals Judge Barrington Parker wrote.

“We are loath to give the government power to punish us for our thoughts and not our actions,” Barrington ruled. “That includes the power to criminalize an individuals expression of sexual fantasies, no matter how perverse or disturbing.”

 But, said the court, fantasies may not be harmless.

“To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law,” the court said.

The appeals court decision overturns an earlier verdic that Valle was guilty of violating the Computer Fraud and Abuse Act for abusing the Omnixx Force Mobile, a computer program that allows officers to search various restricted databases, including the National Crime Information Center database. He was originally found guilty of “exceeding” his authorised access to that database to track down an alleged target of his alleged conspiracy.

The dissenting judge in the 2-1 appeal decision, Chester Straub, criticised his two colleagues for seeking to “enshrine all the conduct in this case in an academic, protective halo”.

This is not a case about governmental intrusion on one’s personal inclinations and fantasies nor is it a case about governmental punishment of one’s thoughts. It is, instead, a jury’s determination of guilt for a conspiracy based on definitive conduct. This is not a case of confused, accidental, or otherwise inappropriate use of a law enforcement database. It is, instead, a police officers use of the official database to obtain, outside the boundaries of his official duties, data about a woman whom he knew.


 See David Kravets original article in Ars Technica for more detail:


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