Sexuality, Criminal Law, the Internet, and the First Amendment

Thea Johnson and Andrew Gilden, both of Stanford Law School, have published Common Sense and the Cannibal Cop at 11 Stanford Journal of Civil Rights and Civil Liberties 313 (2015). Here is the abstract.

The Internet has created unprecedented opportunities for individuals to explore a wide range of unfamiliar and often-marginalized desires, and in doing so has also created unprecedented opportunities for the criminal justice system to monitor and punish these sexual desires. An important example of this dynamic is the recent trial of Gilberto Valle, New York City’s so-called “Cannibal Cop.” Valle, an NYPD officer, was convicted for conspiracy to kidnap several women based on a series of highly fictionalized conversations on a “dark fetish” fantasy website. Although these conversations revealed Valle’s fantasies involving kidnapping, torturing, and cannibalizing women, he had made no effort to kidnap, kill, or eat anyone, and there was no evidence that his online discussions went beyond graphic exchanges and digital role-playing. The “Cannibal Cop” case provides a useful template for examining the ethical boundaries of applying criminal laws to the precarious realm of Internet-mediated sexuality. This Essay highlights some of the important questions raised by the prosecution of the Cannibal Cop, and it emphasizes the need to carefully approach the important, yet inherently blurry line between “fantasy” and “reality.” We caution against overreliance on "common sense" in cases like this, given the incomplete lay understandings of how people use the Internet to explore sexual desires and the risk that legal decisions will be driven by disapproval of these desires.

Download the essay from SSRN at the link.