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Arresting Thoughts

Maeve Roughton asks if it’s becoming a crime to think the wrong thoughts.

You are what you eat, but are you also what you think? Most legal, philosophical, and psychiatric minds would say no; but in the wake of hacking scandals that have exposed everything from politicians’ sexual indiscretions to flesh-eating fantasies, public perception nips at the contrary.

For proof of this, we needn’t look any further than the case of former NYPD officer Gilberto Valle, dubbed the ‘Cannibal Cop’ by New York City’s ever-creative bold-face journalists. After public outrage demanded the criminal prosecution of an imagination that was wholly bizarre but hardly unlawful, he was convicted in 2013 of conspiracy to kidnap and for illegally accessing NYPD databases to engage in graphic online communications about kidnapping, killing, and eating women, crimes that he had never acted upon. In December 2015, the 2nd US Circuit Court of Appeals concluded that Valle’s actions weren’t criminal, overturning his conviction, and declaring, “We are loath to give the government power to punish us for our thoughts and not our actions. That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.”

‘Thought crime’ is not a new concept. George Orwell introduced the idea to us through his Thought Police in Nineteen Eighty-Four, and Philip K. Dick made our sci-fi psyches tick further with Minority Report and its Precrime Division, which penalized crimes that hadn’t yet happened. Forty-five states in the US have hate crime laws that heavily penalize bias-motivated violence over thoughtless brutality. Now, there’s a big difference between dystopian storytelling and real-world rights infringement, but as our planet becomes more electronically interlaced, is that line blurring? Is the digital age ushering in a true age of thought policing?

“There is definitely a tradition of going after crimes before they are committed, so it’s not a difficult analogy to draw that if we have conspiracy and attempted crimes, that thought crimes are punishable too,” Youngjae Lee, Professor of Law at Fordham University, told me recently. “Standard legal doctrine says there is a commitment to not punishing people for having thoughts,” he continued. The demonstrable motivation behind an action might lead to a heavier penalty, however, to clarify, nobody has ever been criminally charged for their thoughts alone.

In criminal law the idea that you have to do something before you have committed a crime is called The Act Requirement. Without the act it’s just a thought, and, to echo the Court of Appeals, even really bad thoughts aren’t themselves criminal offenses. But that’s where it gets tricky today. How do you differentiate between curiosity and intent in a sea of web searches? Are we to be morally or criminally bound to our browser histories?

Public Thinking

At the very least, we shouldn’t be shocked at our lack of privacy; from the government, from hackers, or from lovers. As Ethan J. Lieb, also a professor of law at Fordham University, puts it, “this information is there and is being collected by someone, and you have to be naïve to not realize it’s being collected, and that you’re vulnerable” (Friend v. Friend: The Transformation of Friendship – and What the Law Has to Do with It, 2011).

But is searching the web for tips on how to commit murder with trash bags, a crowbar, and bleach the same as shopping at the hardware store for trash bags, a crowbar, and bleach the day your boss was killed? In the eyes of the law, it may be. As Lee explains, “if your only act consists of writing things down in your own diary, [punishing people for] that seems very close to punishing people for having bad thoughts, but when people start making these diaries quasi-public in some way, through different forums on the Internet, would it be fair for us to think they’ve crossed the threshold of private thoughts to potentially harmful acts?” In the eyes of jilted wives, husbands, and lovers, it seems fair to assume that posting to the net is equivalent to taking action. After all, why register on a hook-up site if you aren’t looking to hook-up?

Sexual indiscretion, however partners define it, existed long before the dawn of the digital age, but it was relegated to meet-ups on Lover’s Lane or seedy out-of-the-way motels, or phone calls in the middle of the night. Once upon a time, exploring and even acting on fantasy left little trace, save what your own stupidity allowed. Today, however, as Lieb says, we’ve got our heads in the sand if we don’t assume that what we put on the Internet is being collected and watched. And while the judicial system has a burden of proof to meet to indict and convict you of crimes, thought-based or otherwise, your boyfriend, girlfriend or spouse is probably not going to afford you such consideration. Nor will the general public.

The court of public opinion often dictates societal norms, drawing lines in the sand to define right and wrong. As our inner thoughts and deepest secrets are given new havens throughout the digital landscape – chat rooms for cheating partners, fetish forums, seemingly anonymous peer-to-peer conversation – they’re also given new pedestals to stand on, and fall from. Like-minded people are now able to find like-minded people in droves, in all four corners of the world, and covering all sorts of predilections. But that freedom of connectivity is marred by a lack of digital privacy, making information-artillery out of every thought, fetish, and fantasy you type, send, and save, all of which could be used to shoot holes in your good name.

Moreover, public perception may not discriminate between you pursuing a cause, an interest, an activity, or just your own curiosity. “People go to a party or social club they would never consider being a part of but want to hear the rhetoric – ‘What do they focus on, are they accurate, are they as awful as my friends say they are?’ But if someone finds out you went to that meeting, all of a sudden your commitments and values are in question,” commented Jonathan Jacobs, Professor of Philosophy at John Jay College of Criminal Justice, when I interviewed him.

It could be a mob mentality that leads everyday people to high-jump to such misinformed conclusions. All it takes for one person to break from the pack for group sentiment to shift. Is it too much of a stretch to think that the same can happen in legal proceedings?

On the surface, yes. “In a liberal political order, the state is not in the business of requiring people to have certain conditions of character – the state can’t require you to have certain interests or commitments,” Jacobs explains. “What the state cares about is whether you obey the law, not whether you obey the law because you’re avoiding punishment or think the law is morally just or because you were raised to respect authority…” The government doesn’t care why you toe the line, just so long as you do. That is, until you don’t: “When we punish people, or at least sentence them, considerations of character are relevant: Is he completely remorseless, does he show callous unconcern for his victims, does he appear to be completely unmoved by the fact that he was found guilty of a serious crime? Even though having bad character is not itself a violation of the law – the state can’t punish you just for having a depraved imagination – nonetheless, if you break the law you can have an additional quantum of punishment heaped on you if you seem to have a really bad character,” Jacobs analyzes.

The Digital Dissolve

But before we lose all hope of flying our freak flags on the net with unimpeded glory, what’s happening in courts of law and public opinion is that we, as a culture, are adapting. The veils of anonymity and the possibilities offered by web-based communication aren’t just appealing to criminals, conspiracists, and cheaters, they’re attractive to everyday users who want to blur the line between reality and fantasy, imagination and order, what is and what could be. As Lieb points out, “People are adjusting their moral sensibilities as they’re learning that they’re ‘one of the millions’.”

The Internet is the new Wild West, and depending on where you sit at the digital roundtable, that is an empowering/frightening/curious truth. Yet in the era of cannibal cops and fifteen-year-old sexting ‘pedophiles’, how far is too far? At what point does a fantasy become a conspiracy, or a sexual inquiry become a lewd act? Furthermore, at what point do thoughts, interests, and persuasions cease to be entirely yours and become fodder both for the world and for the legal system? Perhaps it’s the moment they leave your mind and enter a chat room, status update, or email. Perhaps it’s when they cross the threshold between personal contemplation and public declaration. Perhaps, perhaps, perhaps… And perhaps we shouldn’t even care, because as Lee so aptly notes, “even the harmful and voluntary [statements] ought to be protected; that’s what it means to live in a free society.”

© Maeve Roughton 2017

Maeve Roughton is a writer, artist and strategist living and working in downtown New York City.