Is  it  a  crime  to  fantasize?

Truly one of the strangest trials in a criminal court in American history is the one that took place in New York City in 2013. The defendant was Gilberto Valle, 28, a former cop who fantasied eating women. He had never actually eaten anyone, but he'll always be known as the Cannibal Cop.

He was charged with plotting to kidnap, rape, murder and then cannibalize a number of very real women, including his own wife, who discovered the incriminating evidence on their shared computer. At his trial, he was convicted of conspiring to kidnap a woman and he was also convicted of illegally gaining access to a law enforcement data base in searching for details about the women he wanted to have kidnapped. He was convicted of other crimes but I will deal with them later in this article. The first of his convictions is punishable up to life in prison and the second of his convictions is punishable up to five years in prison.

His defence was that he was merely fantasizing and that he never intended to go through with his plot. If all he did was write about his fantasy and nothing more then that by itself would not be a crime. However, he went further. He entered into an agreement with a like-minded individual he met via a fetish website and chat room to deliver a woman bound and gagged on a certain date for the sum of $5,000. However, the plot was never carried out. The other man was Michael Van Hise who has been charged for his involvement in the plot.

Suppose you fantasized about robbing a bank and you talked a friend into stealing a car that could be used as a getaway car even though your friend didn’t steal a car because he wasn’t able to do so; could you and he be charged with conspiring to commit a robbery? I think you both could.

It is misdirection for a trial judge to tell a jury at the trial of a person charged with having conspired with another person to commit the offence of kidnapping, that the offence of conspiracy was complete by the making of the agreement to kidnap even though the other alleged conspirator never at any time had had any intention of carrying the agreement into effect. The mere agreement, without the intention of both parties to carry into effect the common design, is not sufficient for a conviction. There must exist an intention of both parties not only to agree but also an intention of both parties to the agreement to put the common design into effect. If the prosecutor can convince a jury or a judge that Van Hise intended to deliver a woman who was tied and gagged to Vale and he took some steps to undertake that task, such as steal a car for that purpose, then he is just as guilty as Vale of attempted kidnapping. But suppose he never really intended to do what Vale asked him to do.

There was a case like that in Canada.  Between the 30th day of November, 1952, and the 14th day of January, 1953, an accused man unlawfully conspired with Walter John Tulley to commit a certain offence, namely, kidnapping.

Tulley, the unindicted  co-conspirator, was not charged, but at the trial of the man he had the discussions with after being called as a Crown witness, he gave an account of various meetings he had with the accused, and explained that both he and the accused had agreed, at the request of the latter, to kidnap a woman called Joan Margaret Pritchard. He said in his testimony that he never actually had any intention of going through with this plot and that he was just pretending to go along with the plot. He also  told the court that he informed the police about what the accused wanted him to do and the accused was subsequently arrested.

However, had Tulley agreed to go along with the plot and he drove to the woman’s house and then was arrested as he got out of his car, he would be convicted of conspiracy to kidnap Ms. Pritchard.  

In Vale’s case, it was shown that he conducted surveillance on potential victims and also used the police database to get more information about them. That certainly goes beyond the realm of fantasy. His convictions were justified.

Suppose that Van Hise is able to convince the court in his case that he never had any attention to go along with the kidnap plan. And suppose the only evidence against Vale was his discussions with the Van Hise. How would that effect the decision against Vale? It wouldn’t for one main reason. An appeal court is not bound by the decision of a jury in another trial of another man. Further, Vale went beyond merely talking about kidnapping a woman and that is why he was convicted.

But suppose it was established in Vale’s trial trial that he only had a discussion with Van Hise and nothing else and Van Hise is acquitted of conspiring with Vale to kidnap a woman because he convinces the court that he had no intention of kidnapping a woman, what bearing would that then have on the decision of the Appeal court dealing with Vale’s appeal?

The court would first of all have to be convinced that Van Hise really didn’t have the intention of kidnapping a woman at Vale’s behest. If they were convinced that Van Hise was truly innocent, then that is different kettle of fish.

It is, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy to complete the crime, I have no doubt in my mind that in Vale’s case, there was an intention to put the common design into effect. A common design necessarily involves an intention on both parties to the plot of kidnapping a woman at Vale’s behest.

But if Van Hise had no intention of following up on his role in the plot, then no conspiracy existed because it takes two or more to form a conspiracy.  What this means is that if Vale hadn’t gone beyond merely plotting with Van Hise for him to kidnap a woman for Vale and Van Hise had no intention of adhering to Vale’s request, then there could be no conspiracy between them and that being so, Vales appeal would be successful. As they say in common parlance, it takes two to tangle.

Unfortunately for Vale, he didn’t just limit his conduct to merely talking to Van Hise about kidnapping a woman. He took other steps to make the kidnapping possible and it was those other steps that resulted in his convictions.

His lawyer is appealing the jury’s decision on the basis that it was unreasonable that his client was convicted merely for his thoughts. Is it a crime to fantasize about raping, murdering and then eating a human being?

There's nothing new about erotic cannibal fantasies, or fantasies involving violence and murder. Literature, folklore and myth abound in cannibal themes, often in eroticized or subliminally eroticized forms. Because it is transgressive, cannibalism is an ultimate taboo, and violating taboos is sexy, even if for most people, interest in cannibal pornography never goes beyond a thrilled, horrified shudder at the antics of Hannibal Lecter in Silence of the Lambs.

The Internet gives its users an outlet for what would otherwise be entirely private fantasies. It also enables people who share highly unusual interests to forge connections with one another. As long as their discussions are mere fantasy, no matter how outrageous, they will not have committed a crime.

There's bound to be a flourishing online community of fetishists sharing tips and fantasies. That's certainly true of cannibalistic fantasies.  It would be absurd however to suggest that almost all visitors to such sites were motivated by a wish to murder and actually eat real human beings. If they were, there wouldn't merely be an Internet subculture of cannibal fantasists, there would be an epidemic of cannibalism and fortunately, there isn't. 

In the United Kingdom, if you accessed pictures of fantasy cannibalism, you may well be falling foul of section 63 of the Criminal Justice and Immigration Act 2008—a law that criminalizes the possession of any pornographic image deemed to be a realistic depiction of, among other things, “an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals” which I suppose which would cover many cannibal fantasy pictorial stories.

There's no conclusive evidence that violent porn generally encourages people to act out such fantasies in the real world, at least for the majority of viewers; any more than violent films do. For most users of such sites, who have no problem in differentiating between fiction and reality, they provide an opportunity to explore fantasies in a safe, non-judgemental environment and to connect with like-minded and consenting adults. But admittedly, there are exceptions of course.

Obviously, fantasizing about eating a person is weird but is it illegal? No it isn’t.  However, suppose a person goes beyond the fantasy stage and buys a large butcher table, an electric saw and carving knives and places them in his garage. Would he then be considered as a cannibal? Not necessarily. He might go to that length just to increase the intensity of his fantasy. However, if he also makes plans to kidnap someone and undertakes certain steps to make the kidnapping possible, then there would be no doubt in any reasonable person’s mind that he intends to murder and eat that person. Can he be charged with attempted cannibalism? No because there is no such crime. However, he could be convicted of attempted kidnapping, attempted murder and attempted indignity to a human body if he singled out a particular victim and undertook to learn when she is alone etc.

Vales went further than merely fantasizing kidnapping, raping, murdering and cannibalizing his victims and for that reason, he was convicted of making those attempts.

All that remains are his sentences. When I learn of them, I will pass the information on to you as an UPDATE at the end of this article.