SVU Episode #15-23: Thought Criminal

“Do you want to live in a world where you can be put in prison for what’s in your head?” That’s what the outraged defense attorney asked our ADA in tonight’s episode, and it’s the real-life question raised by the horrifying “Cannibal Cop” case. As technology is increasingly used to explore our most secret desires, it’s an issue that will be debated and litigated for years to come.

Recap:

A photographer named Simon, who specializes in photos of children, secretly fantasizes about torturing and killing little boys. He discusses this extensively in Internet chat rooms, which eventually leads to police attention. Murphy and Amanda go to his showroom for an undercover chat, with Murphy posing as a rich guy who wants to participate in Simon’s activities. After they ditch Amanda, the men discuss kidnaping a boy to torture and kill. Ice-T plays a guy willing to do the kidnapping for a price. Simon is all in, and shows Murphy and Ice the soundproof torture chamber he’s built – across the street from a school – complete with restraints, butchers knives, rotating saws, operating tables, and industrial grade drains and sinks.

Simon is arrested and charged with attempted kidnapping and attempted sexual abuse of a child. The problem with the case: there’s no evidence Simon ever touched a child. Only his DNA is found in the dissection chamber. No children have ever reported being molested by him. The defense attorney says, “He’s on trial for what’s in his head.”

The jury agrees, and acquits him. Nick then follows Simon to a playground and beats him thoroughly. Nick is the one led off in handcuffs at the end of the episode.

Verdict: B+

What they got right:

This was based on the real-life “Cannibal Cop” case. Gilberto Valle was an officer with NYPD, a newlywed husband with a lovely young bride, and the father of a baby girl. He also fantasized about killing, roasting, and eating women. He went online to a site called “Dark Fetish Network,” where he met other men who shared his interest. He googled human meat recipes. In online conversations, he plotted how to kidnap several different women, including his wife. He discussed roasting them on a spit, rotisserie style. He offered to kidnap a schoolteacher for a fee of $5,000. He used NYPD databases to search for information about the women he talked about kidnapping.

In an admirable example of women’s intuition, his wife installed spyware on his computer, and saw what Valle was chatting about. She promptly moved out and notified the FBI. Valle was charged with conspiracy to kidnap, and accessing a federal database without authorization.

He never actually touched a woman, and his defense attorneys argued that he was being penalized for his mere thoughts. The jury disagreed, and he was convicted.

What they got wrong:

There was actually a lot more evidence against Simon in tonight’s episode than against the Cannibal Cop. Simon built a torture chamber! The Cannibal Cop, while bragging that he had an oven large enough to fit a person, didn’t. He never actually procured any of the things he spoke about online. The torture chamber made for compelling TV — but it took a lot of the nuance out of the issue.

The idea of “attempted” crimes has evolved in America over the last century. In the 1800′s, attempting but failing to commit a crime wasn’t considered a criminal act. If you tried to pick someone’s pocket, but there was no money, you couldn’t be prosecuted. In the early 1900′s, attempted crimes were first criminalized. Justice Oliver Wendell Holmes cautioned, “There must be dangerous proximity to success.” In the 1960′s, the Model Penal Code replaced “proximity” with the idea of a “substantial step.” A person plotting a crime could be arrested if he took some real action in furtherance of the crime.

Under this standard, Simon should have been convicted – he built a torture chamber – which was far more than the Cannibal Cop ever did.

According to New York Magazine:

What’s changed in recent years are the tools used to detect intent—namely, a person’s online activity. “We’ve always said you can’t punish for thoughts alone, but now we really know what the thoughts are,” says Audrey Rogers, a law professor at Pace University who has taught the Valle case in class. Since 9/11, the government has used the monitoring of electronic communication to bring more than 200 prosecutions against people suspected of providing material support to terrorist organizations. “You expand the definition of a crime by extending it to this sense of what might happen in the -future,” says Georgetown law professor David Cole.

What do you think, SVU fans? Is Nick going to prison? Will you ever be able to look at rotisserie chicken the same way again? And what would you be convicted of if the police could read all of your Internet communications? Leave your comments. Or not.

About Allison Leotta

Comments

  1. Allison, I strongly disagree. Gilberto Valle was convicted of conspiracy to kidnap and illegally accessing a federal database. Simon was charged with attempted kidnap and attempted sexual abuse of a child. The difference between conspiracy and attempt is important because had Valle have been charged with attempted kidnap, there would likely have been insufficient evidence upon which to hang a conviction. Also, Valle had identified victims and illegally accessed a police computer which was a preparatory act in the commission of the kidnap. Simon hadn’t done any of that, and owning a dungeon (sexual fantasy room) is not in itself evidence of intent to commit any crime. I thought it was a good episode and the verdict went the right way on the evidence.

  2. James Pollock says:

    The part I find hard to believe is that after this guy was put on trial, he was subsequently able to go out and photograph kids on the playground. They were correct that it was legal for him to do so, but someone would have recognized him and chased him off long before Amaro could have found him.

  3. But why didn’t they just charge this guy with conspiracy? A conspiracy requires an agreement and (for most conspiracies) an overt act. Here, if they agreed to kidnap and torture a child and this guy built and maintained a torture chamber or paid the undercover (Ice-T) to do the kidnapping, that would be enough.

    • I agree, perhaps they were worried about entrapment, but IMO attempt was the wrong charge. Had the public prosecutor charged conspiracy the actus reus would have been the planning stages of the crimes not the actual kidnap or sexual abuse. Simon wouldn’t have been able to demonstrate withdrawal or abandonment from the criminal conspiracy because he took no positive steps to stop the crime form being committed and had showed Murphy and Finn the dungeon to be used and agreed to a financial arrangement.

      Still thought it was a good episode.

    • James Pollock says:

      Conspiracy requires more than one person conspiring. (The Lt and Fin did not intend to carry out the crime, therefore they were not conspiring to commit the crime. That leaves just the suspect, and you can’t conspire by yourself, no matter how hard you try.)

      There was no conspiracy to charge.

      He offered up the use of the room as his payment for being included. Thus, attempt was the correct charge, and there was enough evidence to support the charge (i.e., he should have been convicted.)

      • James, there were numerous conspirators. He communicated his plans to kidnap a boy and live stream the sexual abuse on the internet to his nonce ring. The fat man (?) was a co-conspirator but would be able to argue abandonment of the conspiracy and would likely be a State witness in a conspiracy case. What I also think is pregnant is that he communicated his intent before interaction with the police, thus I’m not sure what the position would be in the US on entrapment. Also his involvement with Murphy and Finn would negate any defense of departure or fantasy.

        • James Pollock says:

          If there was a case for conspiracy, they wouldn’t have had to run the sting. The only evidence against this guy except for the testimony of a person who was desperate to name names to reduce his own sentence… If all of the evidence available is hearsay, any defense attorney should be able to smack that down.

          Before the sting, conspiracy is the wrong charge because there’s no overt act. After the sting, conspiracy is STILL the wrong charge because there’s only one “conspirator”, and thus no conspiracy.

          IF they could find evidence, there’s a possibility he’s also guilty of being an accessory to murder, but it would be in a foreign jurisdiction, wherever the boy was murdered (if, indeed, he was.)

          • James, Gilberto ValleConversely was convicted for conspiracy. It’s the right charge, and your just wrong when you say there was only one conspirator. There were several conspirators in law, including the fat man. The prosecution can charge a single defendant with conspiracy, the other conspirators do not have to be identified. Also the multi-jurisdictional nature of the conspiracy would be no obstacle to prosecuting Simon.

          • James Pollock says:

            “your just wrong when you say there was only one conspirator.”

            There was no conspiracy. The defendant didn’t conspire to build his torture chamber, he did it by himself. He did not enlist others in his plan to kidnap and torture someone. Talking about things you’d like to do isn’t conspiracy. There’s literally no one else who planned the crimes with the defendant, ergo, there is no conspiracy to commit crimes.

            “There were several conspirators in law, including the fat man.”
            You keep saying this, but it’s still not true. The fat guy didn’t conspire with anyone, either.

            “The prosecution can charge a single defendant with conspiracy, the other conspirators do not have to be identified.”
            True, if other conspirators existed, which they do not.

            “Also the multi-jurisdictional nature of the conspiracy would be no obstacle to prosecuting Simon.”
            You missed my point in bringing up the jurisdictional issue. IF there really was a boy in Europe who was tortured to death on a live-stream, then anybody to paid for it has criminal liability for the murder. But this won’t be investigated by the NYPD, which was unable to prove that the live-stream even occurred, much less than a person was actually murdered. The problem isn’t prosecuting the case, it’s investigating it.

  4. Simon had the torture chamber for months and didn’t use it despite ample opportunity, further more he had a plausible reason to have built without intending to use it (IE that it was part of elaborate fantasy he’s had all his life and never acted on).

    Arguing that the chamber was a “substantial steps” towards actually abducting a child is about as fair and reasonable as arguing that buying a hand gun is a “substantial step” towards murder. I think the verdict was fair and appropriate and if it doesn’t reflect what would have happened in reality then there’s something wrong with reality

    • James Pollock says:

      “Arguing that the chamber was a “substantial steps” towards actually abducting a child is about as fair and reasonable as arguing that buying a hand gun is a “substantial step” towards murder.”

      Buying a weapon is a substantial step towards murder, yes. That’s why so many jurisdictions impose a waiting period for firearm purchases., or at least, they used to. I don’t know if Heller struck down waiting periods for firearms purchases.

      It’s not the building and outfitting of the room that was the substantial step, it was the part where he offered its use as payment for the kidnapping that was the substantial step.

      • “It’s not the building and outfitting of the room that was the substantial step, it was the part where he offered its use as payment for the kidnapping that was the substantial step”

        for some reason the episode seemed to totally ignore the fact he that he’d done that

      • How is it a substantial step in an attempted kidnap? It was never Simon’s intent to carry out the kidnap personally rather he was paying Finn to do it (conspiracy and accessory) but Finn had no intention of carrying out the kidnapping, so there is no attempted kidnap. Offering his torture chamber to Finn would have been a substantial step towards the attempted sexual abuse charge had Finn attempted to kidnap a child but he didn’t. Four armed men in a private dwelling armed with sawn-off shotguns, wearing balaclavas and planning a bank robbery are not guilty of attempted armed robbery until they set off, but they would still be guilty of conspiracy to commit armed robbery.

        • James Pollock says:

          “How is it a substantial step in an attempted kidnap?”
          How is paying someone to kidnap a substantial step in an attempted kidnap? Really?
          Go back to the scene in the park with Finn where they are negotiating. They’re trying to get the guy on tape offering cash to the “kidnapper”, but he doesn’t have cash. He offers the use of the room as his contribution to the deal.

          • I don’t accept that arranging to pay someone to commit a kidnap constitutes the actus reus for attempted kidnap. However, if I’m wrong you will be able to provide case law to support your position, but I doubt you’ll find a single case in which a defendant has been convicted of attempted kidnap in similar circumstances.

          • James Pollock says:

            NY’s criminal attempt law is in section 110.00.
            “A person is guilty of an attempt to commit a crime when, with intent
            to commit a crime, he engages in conduct which tends to effect the
            commission of such crime.”
            Hard to see how soliciting the crime would fail to “tend to effect the commission of such crime.”

            “I doubt you’ll find a single case in which a defendant has been convicted of attempted kidnap in similar circumstances.”
            Yeah, the fact that it doesn’t come up in the courts doesn’t prove that it can’t.
            I don’t have access to NY reporters, so I’m not researching NY case law. The statute seems pretty clearly to encompass solicitation as attempt.
            I suspect that it comes up far more often in solicited attempts at murder.

  5. http://en.reddit.com/r/news/comments/124bus/new_york_cannibal_cop_gilberto_valle_accused_of/

    reddit thread from around the time the Gilberto Valle thing broke. the first comment is “Hate to repeat a joke, but this is a good week for law & order SVU writers”

  6. James, so in my answer to my question you can find no case law to support your position.

    • James Pollock says:

      “James, so in my answer to my question you can find no case law to support your position.”

      I presented exactly the same amount of case law that you did, no more, no less.

      Kidnap-for-hire is rare, and usually shows up in the courts as successful kidnappings, not attempts.

      Then, many kidnappings are prosecuted at the federal level. The “current” kidnap-for-hire case involves Orthodox Jewish men bening kidnapped and extorted into granting their wives’ divorces. There are also a set of cases revolving around kidnapping a young adult who’s joined a cult.

      There’s kidnapping in sex-trafficking, of course, but usually the charges are sex-trafficking, which I believe ( but haven’t looked) has kidnap as a lesser-included charge.

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