*This article was originally published on In Homeland Security.
In the 2002 science fiction film “Minority Report,” police arrest individuals before they commit crimes. A specialized law enforcement unit employs psychics who witness crimes by seeing into the future. Those people who are predicted to commit the crimes are found guilty and punished.
The movie recalls George Orwell’s 1949 futuristic novel, Nineteen Eighty-Four. In the novel, the Thought Police (Thinkpol) punish individuals for thoughts not approved by the Party and its leader, Big Brother.
Fast forward to 2013, when former New York City Police officer Gilberto Valle was convicted by a jury for conspiracy to kidnap. Valle was found guilty, based on his use of the internet to share his fantasies of kidnapping, torturing, raping, murdering and cannibalizing women on Dark Fetish Net.
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This website is dedicated to these perverse types of discussions. However, Valle described his activities as just mere thought and fantasies.
Valle Allegedly Surveilled Women as Potential Victims
The prosecution argued that Valle took “substantial steps” toward actually kidnapping women using law enforcement databases to find them. He allegedly conducted surveillance on the women and used the internet to research how to subdue, kidnap and cook his potential victims.
The New York State Penal Code on conspiracy necessitates an agreement with one or more individuals to engage in or cause a crime to be committed. But the law also requires the commission of an overt act that would further the conspiracy.
Were Valle’s actions enough to meet the overt act required in furtherance of the conspiracy? Was a conspiracy entered into over the internet between Valle and others? Was there a specific intent on Valle’s behalf to go through with his fantasies?
Guilty Verdict Overturned for Lack of Evidence
Sixteen months after Valle’s conviction, the judge in the original trial overturned the jury’s guilty verdict. Judge Paul G. Gardephe decided that the evidence did not prove beyond a reasonable doubt that Valle had entered into a conspiracy or that he had the requisite specific intent to kidnap.
The trial judge’s decision was affirmed in 2015 by the United States Court of Appeals, Second Circuit in United States v. Valle. Both courts ruled that fantasy role-playing and fantasy crimes, no matter how horrific, are not actual crimes. However, the dissenting judge in the Circuit Court’s 2-1 ruling argued that the elements for conspiracy to kidnap were present and the jury was correct in finding Valle guilty.
Park Dietz, a forensic psychiatrist, was the expert witness for the defense, but he was never called to the stand. In an article in New York magazine, Dietz discussed his interview with Valle. He found that Valle’s actions as outlined in the case were “far from ominous” and that Valle was “like a man with a fetish.”
When Do Violent Fantasies Become Criminal Acts?
A major concern among law enforcement officials and legal scholars is that at some point an individual with these types of violent fantasies might not be satisfied with just visiting violent websites. And that could lead to that person actually acting on these types of fantasies. To this day, Valle stills visits these websites and participates in fantasy role-playing.
What if Valle had actually lived out his fantasy and kidnapped, tortured, raped and murdered women? How can we know whose thoughts are just fantasy and who will actually act on them? Where do we draw the line between freedom of thought and preventing crime?
When Orwell wrote Nineteen Eighty-Four in 1949, he was issuing a strong warning against totalitarian governments. After all, it was only four years since the Allies had defeated Nazi Germany and Imperial Japan in the Second World War.
Law enforcement is tasked with protecting citizens by preventing crime. Preventing crime is at the forefront of the criminal justice system. But some might say that predicting criminal behavior and prosecuting such thoughts without criminal acts would be a giant leap in preventing crime before it happens.
However, prosecuting individuals for their thoughts is anathema to our concepts of a democratic and free society. We would end up becoming a big Brother thought-police state. That would be dangerous.
About the Author: Terri L. Wilkin graduated from the University of Maryland’s Francis King Carey School of Law in May 2007. Terri is admitted to practice law in the State of Maryland and the District of Columbia, and has been admitted in the Federal United States District Court for the District of Maryland. Prior to law school, she obtained a Master of Science dual degree from the Johns Hopkins University in Leadership and Finance/Accounting. Her 26-year career with the Maryland State Police includes assignments in patrol, criminal and drug investigations, white-collar crime, intelligence work, training, the Deputy Director of the Planning and Research Division and as the Department Prosecutor. She is also a Florida Licensed Private Investigator and a managing partner in an investigative consulting firm.