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Thought Crime and Its Devotees

by Charles Carreon
August 10, 2013

Thought crime in progress provokes reflection.

Why is it that when bad things happen to other people, we don’t feel them in the same way as when they happen to us?  We have a lot of faith in other people’s capacity to bear stress and pain.  For all the bad things he says about me, Ken Popehat White has a lot of faith in my actual mental stability.  He’s not afraid that I’ll hurt him physically or destroy his property.  That’s nice, because I wouldn’t want him or anyone to worry about their physical safety on my account.  The whole concept of forsaking violence as a cost of being a member of civilized society seems, to me, a fair trade.  I don’t maim you, you don’t kidnap my children.  We have to draw the line somewhere. Verbal violence, imagistic violence, poses and threats, all blur together.  Communication pumped up with hostility can be eloquent and beautiful, crude and offensive, menacing and scary.  Y’know, punk rock?  It’s hard, real hard to put limits on speech based on its content.  The more we allow ourselves to see, hear and think previously taboo thoughts, the more we realize many of the taboos are ridiculous.  But not all of them.

There is a taboo on getting involved in fantasizing graphic violence being committed upon your chosen victims.  Gilberto Valle violated that taboo at length and is now facing life in prison for plotting to kidnap and murder women.  Most people think that this means that he “is guilty.”  No, that is a misunderstanding of reality.  Criminal guilt is an absolute concept defined by the criminal law, and the jury was given the task of trying, to the best of their limited ability, to decide whether Valle had a criminal state of mind when he wrote all those emails discussing which women he would kidnap, how he would kill them and eat them, etc.  The juryconcluded that he’s guilty because they were willing to decide that they knew, beyond a reasonable doubt, what was going on in Valle’s mind when he wrote the things he wrote.  As Daniel Engber wrote in Slate, after observing a couple of days of the trial:

[i]t’s hard to say exactly what valle is accused of doing in the first place. he never kidnapped anyone, or raped anyone, or murdered anyone. He was never violent to the women who will take the stand. He’s never tasted human flesh. But he thought about these things, and he talked about these things. He may have even taken steps to plan them out. But did he really mean to do them?

Engber’s article seems like a reliable account of a case that was shaping up to go either way, depending entirely on the jurors.  Valle exchanged a lot of emails with another guy whose wife said she knew he engaged in these crazy pretend-to-plan-to-kidnap-someone games with other people online, and a third guy, who was like a dungeonmaster type in England who was egging them on.  The conspiracy conviction, of course, is quite unlikely to be overturned on the grounds that Valle didn’t commit overt acts in furtherance of the conspiracies, because writing people emails telling them you’re going to buy rope to tie somebody up and a cattle prod to torture them is an overt act in furtherance of a conspiracy.  But some jurors would like to see the rope and the cattle prod, while other jurors will send you to jail just for having a nasty shopping list.

Meanwhile, back at the funny farm, Ken Popehat White is up to his snout in the fine print of when verbal threats become criminal because, because, well because, goddamn, he’s been threatened.  He thinks. Well not him, really, but another lawyer might think, that this guy Bill Schmalfeldt has threatened him.  He’s really annoyed about it, because he republished the better part of the guy’s rant.  What’s so funny is how White threatens Schmalfeldt while claiming he is not threatening him.  White gives us the word for what he’s doing when he threatens to report someone to the prosecution by not reporting them to the prosecution, and merely writing a long, detailed blog post purporting to analyze the criminality of threats of physical violence.  The word is “apophasis,” that Popehat explains is “the rhetorical device of saying something by asserting you are not saying it.”  I’m just sayin’.