Conspiracy and the Fantasy Defense: The Strange Case of the Cannibal Cop

by Kaitlin Ek

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Abstract

In the notorious “Cannibal Cop” case, New York police officer Gilberto Valle was accused of conspiring to kidnap, kill, and eat various women of his acquaintance. Valle claimed a “fantasy defense,” arguing that his expression represented not conspiracy agreement, but fantasy role-play. His conviction and subsequent acquittal raised questions about the freedom of speech, thoughtcrime, and the nature of conspiracy law. Because the essence of conspiracy is agreement, it falls into the category of crimes in which pure speech is the actus reus of the offense. This Note argues that as a result, conspiracy cases in which the fantasy defense is implicated pose special due-process and First Amendment dangers, and concludes that these dangers can be mitigated by a strengthened overt-act requirement.

Conspiracy and the Fantasy Defense: The Strange Case of the Cannibal Cop

by Kaitlin Ek

Click here for a PDF file of this article

Abstract

In the notorious “Cannibal Cop” case, New York police officer Gilberto Valle was accused of conspiring to kidnap, kill, and eat various women of his acquaintance. Valle claimed a “fantasy defense,” arguing that his expression represented not conspiracy agreement, but fantasy role-play. His conviction and subsequent acquittal raised questions about the freedom of speech, thoughtcrime, and the nature of conspiracy law. Because the essence of conspiracy is agreement, it falls into the category of crimes in which pure speech is the actus reus of the offense. This Note argues that as a result, conspiracy cases in which the fantasy defense is implicated pose special due-process and First Amendment dangers, and concludes that these dangers can be mitigated by a strengthened overt-act requirement.