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SVU's "Thought Criminal"

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"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 1800s, 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 1900s, attempted crimes were first criminalized. Justice Oliver Wendell Holmes cautioned, "There must be dangerous proximity to success." In the 1960s, 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.