How Far is Too Far? Fantasy vs. Criminal Conspiracy

Criminal Conspiracy – What is Fantasy and What Isn’t?

Remember the “Cannibal Cop” case from last year? Gilberto Valle was arrested and charged with conspiracy to commit kidnapping as well as conducting an unauthorized search of a federal database after his wife found very disturbing messages and photos on his computer. Basically Valle was charged and convicted of criminal conspiracy to commit kidnapping after chatting on a website called (I’m not linking there. Nope.) about kidnapping, torturing, raping, and cannibalizing women.

Valle went on trial and was convicted of both crimes: conspiracy to commit kidnapping and unauthorized search. Following his conviction he moved for a judgment of acquittal and new trial on both counts. Yesterday the federal judge vacated his conviction on the conspiracy to commit kidnapping charge because there was no evidence that Valle actually intended to act on what he and his co-conspirators talked about online. Importantly the court’s decision noted that “no real-world, non-internet-based steps were ever taken to kidnap anyone.”

So What is “Criminal Conspiracy” Anyway?

Criminal conspiracy is an agreement to commit a crime. It is considered a crime whether or not the actual planned crime occurs. To prove the crime of conspiracy, the prosecutor must prove three things:

  1. an agreement among the conspirators to commit a crime;
  2. specific intent to commit the crime; and
  3. an overt act or substantial step in furtherance of committing the crime.

Pure Fantasy = No Specific Intent

The court found that there wasn’t enough evidence of Valle’s specific intent – meaning that the prosecution did not offer sufficient evidence which would allow the jury to distinguish Valle’s “fantasy” chats from the “real” chats. Notably the prosecution conceded that nearly all of the chats were fantasy role-play, and prosecuted Valle only on a select group of what it called “real” chats. Even though the prosecution made this distinction, there was no real way of filtering out the “real” chats from “fantasy” chats, because both contained similar lies about names, locations, and methods.

Also, although the court didn’t address this, it is likely that Valle’s conviction would have been overturned due to lack of evidence of any overt act or substantial step towards committing the kidnappings. To prove this the prosecution would have had to show that Valle did something (such as buying rope, staking out the intended victim’s house, etc.) in furtherance of committing the crime.


No matter how you look at it the details of this case are disturbing, and Valle is certainly into some creepy stuff. But should thinking creepy things be a crime? Should talking about them online?

I hate to pull out the “slippery slope” argument, but what if Valle’s conviction had been upheld? This decision, as creepy as Valle and his pals may be, reaffirms that simply thinking about something isn’t a crime.