Thought Crimes, True Threats & the Cannibal Cop

In 2012, after the wife of NYPD cop Gilberto Valle installed spyware software on his computer, she found dozens of disturbing chat logs from a website called DarkFetishNet. The chats contained Officer Valle’s schemes and fantasies to kidnap, rape, cook, and eat women, including his wife. Although he never took any actions and his desires never resulted in any actual crimes, he was arrested, nicknamed the “Cannibal Cop,” and ultimately convicted in federal court on conspiracy charges. He faced life in prison.

In 2014, his conviction was overturned on appeal. A new documentary, “Thought Crimes,” which debuted at the Tribeca Film Festival earlier this year, explores the moral and legal gray area that was exhibited in the stunning reversal of his conviction.

The prosecution argued that Valle’s search history was evidence that his sexual fantasies about torturing and eating women were likely to result in the manifestation of physical crimes. Still, mere idea or fantasies – no matter how disturbing – do not always lead to action. Regardless, the legal system can still use those ideas against people.

This past week, the U.S. Supreme Court released its highly anticipated decision in Elonis v. United States. In it, many lawyers were hoping that they would clarify, once and for all, the line between “protected speech,” and “true threats.” Simply put, does a true threat require a guilty mind?

What every first year law student learns is that a crime requires not only the “actus reus,” but also the requisite “mens rea,” or intent to commit the crime. While a person does not have to know that their actions are against the law, the prosecution must prove that they were aware of the act that they committed. In Elonis, a Pennsylvania man was arrested after he began posting on Facebook that he was thinking of killing his wife. Elonis claimed that he was posting under his “rap” name “Tone Dougie” and that his words were just artistic expression and emotional therapy. He argued that the 1^st Amendment protected his posts as free speech because there was no “specific threat” to carry out any of the threats.

The Supreme Court has repeatedly held that the 1^st Amendment does not protect “true threats,” which does not mean that the defendant will actually do what he says, but that his words simply mean what they say. Confused? So was Tone Dougie.

However, the Court ruled in favor of the defendant, but skirted the First Amendment issue, choosing instead to decide the case on statutory grounds. The Court ruled that a conviction for violating the federal threat statute cannot stand if it is based only on the finding that a “reasonable person” would have foreseen that the statements would be perceived as threatening. Instead, the speaker’s subjective intent in making the statements has to be taken into consideration.

So, while this ruling – as well as the Cannibal Cop reversal – seem to stand for the general principle that, without some physical or other manifestation of intent, someone cannot be convicted on their words or thoughts alone, there are sure to be future conspiracy and harassment cases built on mere “words” or “thoughts.”

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