Fantasizing online about kidnapping, sexually abusing, and eating women does not amount to unlawful conduct or thoughtcrime, a federal appeals court ruled. 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 Thursday in the criminal case of Gilberto Valle, dubbed the New York City “cannibal cop.”
“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 individual’s expression of sexual fantasies, no matter how perverse or disturbing.”
The 2-1 decision by the New York-based federal appeals court sides with a trial judge who dismissed a jury’s verdict that the former police officer was guilty of conspiracy to kidnap because of his online discussions with members of the Dark Fetish Network (DFN). The government, on the other hand, argued that the online communications “taken at face value, were fully sufficient to establish his intent to join a kidnapping conspiracy.”
The appeals court said it disagreed with the government’s position because the government did not prove “real” criminal intent. The government claimed that some of Valle’s discourse was “real” while others portions were indeed “fantasy,” saying:
Our review of the record yields the same conclusion. In both groups of chats, Valle transmits Facebook images of women and offers to kidnap and sell them on a “cash upon delivery” basis, and 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 court noted that its decision “does not mean fantasies are 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.
Nevertheless, the majority concluded that the jury got it wrong.
“On this record, no reasonable juror could conclude beyond a reasonable doubt that Valle possessed the specific intent to kidnap anyone or that he and his alleged co‐conspirators ever formed an agreement to actually carry out any of the purported kidnappings. The mere indulgence of fantasy, even of the repugnant and unsettling kind here, is not, without more, criminal,” the court ruled.
The appeals court decision also overturns the jury’s verdict—and a trial judge’s decision upholding that verdict—that Valle was guilty of violating the Computer Fraud and Abuse Act for abusing the Omnixx Force Mobile (OFM), 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 authorized access to that database to track down an alleged target of his alleged conspiracy.
Here’s how the court framed the issue:
The dispositive question is whether Valle “exceeded authorized access” when he used his access to OFM to conduct a search for Maureen Hartigan with no law enforcement purpose. Valle concedes that he violated the terms of his employment by putting his authorized computer access to personal use, but claims that he did not violate the statute because he never “used his access to obtain any information he was not entitled to obtain.” Valle’s Opening Br. 8. In other words, Valle argues that he did not “exceed authorized access” because he was otherwise authorized to obtain the database information about Hartigan; his non‐law enforcement purpose in running the search is irrelevant. See id. at 9. The Government contends that Valle “exceeded authorized access” because his authorization to access OFM was limited to law enforcement purposes and he conducted a search for Hartigan with no such purpose.
The court concluded that much of the US workforce would be guilty of violating the CFAA anti-hacking statute if the court was to accept Valle’s guilt. That’s because many workers do things on computers that their employers forbid, the court said.
“While the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the Government promises to use it responsibly,” the majority ruled.
In dissent, Judge Chester Straub lashed out at his colleagues. “The majority opinion seeks to enshrine all the conduct in this case in an academic protective halo,” he said, adding:
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 officer’s use of the official database to obtain, outside the boundaries of his official duties, data about a woman whom he knew.