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Is it a real crime or merely fantasy?

Most crimes have specific elements that a prosecutor must prove in order to convict someone accused of that crime. These elements can range from simple to complex. The first-degree assault in Missouri described as, "A person commits the offense of assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to another person."

So, a prosecutor needs to prove that someone attempted to kill or seriously injure another. The key term here is what is meant by "attempt." Likely, there are numerous cases where courts have described the situation or circumstances that qualify as an "attempt."

However, what if someone wrote elaborate depictions of an assault? Chances are that it would be difficult for a prosecutor to prove that mere writing, without further concrete steps by the accused, as being sufficient for a guilty verdict in a first-degree assault case.

And that was the problem a federal appeals court had with the infamous case of the "cannibal cop" who had been arrested and sentenced to prison for writing out violent fantasies about kidnapping and killing women, which included eating their bodies.

The court noted that "Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime." Criminal law is designed to punish actions, and the court worried that criminalizing mere thoughts would be dangerous.

He had been convicted by a jury of a kidnapping conspiracy charge, but the trial court reversed that verdict because the government had failed to prove that he had engaged in sufficient overt acts to commit the crime.

Conspiracy cases are always complex because they rely on uncompleted steps. Typically, there must be an agreement and some overt steps. The overt steps taken can vary, but in this case, the district court and appeals court both agreed that that element was not proven.  

Source: molawyersmedia.com, "Appeals court: Fantasizing about violence is not a crime," Associated Press, December 3, 2015

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