Fantasy v. Crime: Where’s the Line?

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Have you ever have a really bad day at work and indulged yourself in a detailed daydream of how you’d torture and maybe even kill your awful boss á la the movie “Horrible Bosses“?

Maybe you even shared this fantasy with a like-minded co-worker over drinks. Based on your daydream, should you be arrested for planning or conspiring to commit a crime? Or are such fantasies a harmless way to deal with job frustrations, sexual desires and other feelings?

The so-called “cannibal cop case” addresses this exact issue. The case has been extensively covered in the media— and it’s no wonder.

Gilberto Valle, a NYPD officer at the time, was charged by federal prosecutors with conspiring with three individuals to kidnap, torture, kill and eat five women—four of whom Valle knew personally, including his own wife. In fact, it was Valle’s wife who turned him in after finding a plan for abducting and cooking women on their home computer.

Valle was convicted at trial in March 2013. But a federal district court recently overturned his conspiracy conviction on appeal. The basis for the court’s reversal: Valle’s actions didn’t constitute a crime but merely “fantasy role-play.”

To understand the district court’s decision, you must first understand the law on conspiracy.

In the most basic sense, a conspiracy is an agreement between two or more people to commit a crime. The conspirators don’t have to actually commit such crime: the heart of a conspiracy charge is the agreement.

To prove a federal conspiracy charge specifically, the prosecution must prove: 1) an agreement by the conspirators to commit an offense; 2) the specific intent to achieve the conspiracy’s objective; and 3) an “overt act” to effect the object of the conspiracy—that is, a step towards the commission of the conspiracy’s crime goal.

With this definition in mind, let’s return to our “Horrible Bosses” example.

Discussing with a co-worker all of the terrible things you’d do to your boss-from-hell wouldn’t constitute a conspiracy by itself.

But let’s say you and your co-worker agree to kidnap your boss using a stun gun to subdue him and then take him to a cheap motel where you’d torture him.

If you bought a stun gun while your co-worker paid for a motel room, you both could be charged with conspiracy because you exhibited the specific intent to kidnap and torture your boss and committed overt acts—buying the stun gun and renting the motel room—toward the commission of that crime.

In the district court’s 118-page decision, Judge Paul G. Gardephe focused on the fact that the discussions between Valle and his co-conspirators about kidnapping, torturing, killing and eating various women all took place online. They never met in person, planned to meet, or even spoke on the telephone.

Moreover, no women were ever kidnapped; nor did any attempted kidnappings take place.

Viewing the evidence as whole, I believe the court made the right decision. There was too much evidence that contradicted the government’s inference that Valle and his co-conspirators actually intended to commit any of the criminal acts they discussed. Dates of planned kidnappings came and went without a kidnapping occurring; yet no one said a word about them, which supports the argument that they were all talk, no action.

In fact, some of the discussed acts were plainly impossible, such as the planning of various kidnappings of different women in different cities at around the same time.

However, I am concerned about the judge’s continual focus throughout the decision on the fact that the alleged conspiracy took place entirely in the “virtual world” while no “real-world, concrete steps” were taken.

In addition, to chats with the other alleged co-conspirators, Valle took other actions online toward the furtherance of the conspiracy.

For example, Valle created nearly 90 computer folders containing the names and Facebook pictures of women he knew, including the alleged targets of the conspiracy. He also conducted Internet searches on various means and methods of kidnapping. And he used his NYPD patrol computer to access federal, state and local databases, and search for criminal history and other information on the targeted women. (His conviction on a charge related to this action was upheld on appeal.)

Thirty years ago, Valle couldn’t have done such research online. For instance, he would have had togo to a library to research kidnapping, or buy a book on the topic at a bookstore.

If Valle had taken such “real world” steps in the present day, would the court have ruled differently?

The decision begins by noting that the facts reflect “the Internet age in which we live.” But in some ways, the court’s ruling doesn’t actually reflect this reality and how people interact today.

We live in a different time from when many of our criminal laws were first drafted. In today’s “real world,” people conduct a lot of their actual, non-fantasy lives online.

They meet perspective dates and hunt for jobs online. They hold business meetings in cyberspace. They communicate electronically through emails, texts and online posts. In fact, young people don’t even like leaving voice mail messages, much less actually talking on the phone.

So it strikes me as inappropriate and unrealistic to give less weight to such online actions than to acts that occur in the physical world.

For instance, buying a book on how to make a bomb shouldn’t be considered more compelling evidence than researching bomb-making on the Internet.

Valle’s defense had described the charge as a “thought crime.” And after the conviction was overturned, Julia L. Gatto, Valle’s lead lawyer, said her client was “guilty of nothing more than very unconventional thoughts.”

She has a point. People should be able to think or fantasize about whatever they want, no matter how unusual or grotesque— and to share these thoughts with others.

It’s necessary for the criminal justice system to draw a line between fantasy and reality. Knowing where to put that line is the challenge.

When courts are faced with this challenge, it’s critical that they consider the realities of our society and how people actually interact and behave.


Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.

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