Separating Internet Fantasy From Reality

Most crimes have two components, one mental (mens rea), the other physical (actus reus). A jury must determine what a defendant was thinking when he or she committed a certain act. When the Internet is the medium, that can get complicated. Consider the case of Patrick J. Naughton.

For several months, Naughton, a former executive vice president of Walt Disney Co.’s Go.com, had been “conversing” in an Internet chat room, called “Dad&DaughterSex;,” with someone who claimed to be a 13-year-old girl. Their conversations were sexually explicit. Ultimately, Naughton and “the girl” agreed to meet. Naughton flew from his home in Seattle to Burbank, then drove to the Santa Monica Pier, where the meeting was to take place.

At the pier, Naughton approached a woman in her 20s. After a brief conversation, FBI agents arrested him. He was charged with traveling across state lines to have sex with a minor and enticing a minor to have sex by using the Internet.

Naughton’s attorneys, Donald Marks and Anthony Brooklier, argued to the jury of six men and six women that their client lacked the requisite mental state to commit the crimes he was accused of. Instead, they asserted that Naughton was participating in an Internet sex fantasy and had no real intent to have sex with a minor.

In a surprise decision, the jury could not decide and hung on the two counts. Moreover, the jury divided along gender lines. The men asserted that Naughton was playing out an innocent fantasy, while the women believed that the defendant had gone to the pier with the intent to have sex with a child. Naughton was convicted of possessing child pornography. He will be retried on the attempted child-molestation counts.

In the past, both the FBI and local police have conducted numerous online sting operations to ensnare potential child molesters who use the Internet to find victims. Agents posing as children exchange e-mail or Internet chat messages. Eventually, the suspected child molester proposes a meeting, generally in a mall or other public place. When he shows up at the agreed-upon destination, he’s arrested.

Since the suspect generally had come a substantial distance, the circumstantial evidence of traveling from one city to another was sufficient for the jury to conclude that he came to the assignation expecting to have sex with an underage person. But Marks and Brooklier took the mental-state issue one step farther. They contended that even if the defendant did show up, he didn’t want to have sex with a child. Instead, he wanted to see who his counterpart was in the role-playing world of Internet sex fantasies.

This defense may be unique in the annals of American law. For about 150 years, the United States has recognized an “insanity defense,” known as the McNaughton Rule, for the mentally ill who understand neither the nature or quality of their acts nor that their acts are wrong. Similarly, the law recognizes a “heat of passion” defense, which reduces murder to manslaughter. Heat of passion generally applies to homicides associated with spontaneous bar fights or finding one’s spouse in a compromising position with another. The theory is that some situations so overwhelm the capacity for reason that the subsequent homicide is less culpable because the defendant could not reflect on the consequences of his or her actions.

There is also a “mistake of fact” defense, often used in cases where a defendant is enticed into delivering an innocent-looking package that turns out to contain illegal drugs. The mistake of fact is the defendant’s assertion that he or she thought the package contained aspirin, baby powder or some equally benign substance, not the heroin or cocaine that the substance turned out to be. To borrow from the movie “The French Connection,” sometimes a car is a car and sometimes a car is nothing more than a big box containing kilos of heroin. The question for a jury is whether to believe the defendant knew about the contraband.

Almost always, criminal intent is proved using circumstantial evidence. In Naughton’s case, however, he testified directly on the question of his state of mind. He explained the world of aberrant Internet fantasy sex, the numerous “news groups” and “bulletin boards” devoted to unconventional sexual practices. He testified that there are probably millions of people carrying out sexual fantasies on the Internet that, in real life, they have no intention of undertaking.

With direct evidence, the question for the jury is reasonably straightforward: Does the jury believe the witness is telling the truth? Conversely, the problem is somewhat more complex with circumstantial evidence, the kind used against Naughton. Because the government must prove a criminal case “beyond a reasonable doubt,” the judge instructs the jury that if the facts have two reasonable interpretations, one of which leads to a not-guilty verdict, the jury must adopt the interpretation that leads to this verdict. If, on the other hand, one interpretation of the circumstantial evidence is reasonable, while the other is unreasonable, the jury should take the path that it finds reasonable. If the circumstantial facts largely point to guilt, the jury should find the defendant guilty.

What Naughton did on the stand was to undermine highly suspicious circumstantial evidence--the Internet chat-room exchanges, his travel from Seattle to Santa Monica and the encounter at the pier--with direct evidence: his sworn testimony that he was engaged in fantasy role-playing and never had the intention of committing a sex act with a minor.

The defense bolstered Naughton’s testimony with that from Dr. Nancy Kaser-Boyd, a clinical psychologist specializing in child-molestation cases. She conducted a battery of psychological tests that highlight pedophiliac sexual desires on Naughton, and the tests proved negative. She explored his personal history and found it to be incompatible with histories generally found in molesters. After examining him in numerous interviews, she concluded that Naughton did not possess the characteristics of a child molester.

So how do we reconcile the disparate realities of chat-room sex talk and interstate travel with a fantasy world of sexual role-playing games? The answer may lie in the differences between how males and females use fantasy. From the childhood game of Dungeons and Dragons on through the adult male-bonding Rotisserie Baseball leagues, male role-playing games value power, dominance, control and winning. In contrast, female fantasies tend to reward pleasure, cooperative play and synergetic feelings.

In the computer world, there is no female counterpart to the fabulously successful game “Virtual Valerie,” the plot of which is clear from its title. When it comes to Internet sex crimes, Marks and Brooklier may have added a new wrinkle to criminal defense strategies. After all, the Internet is a world in which a gorgeous 19-year-old girl in a chat room is almost always a 14-year-old pimply boy “goofing” on the other participants. And therein lies the beginning of a defense.

It’s likely that defense attorneys around the country will attempt to copy Marks’ and Brooklier’s “fantasy” defense. But even if claims of Internet fantasy become common in Internet child-porn cases, the likelihood of its widespread success is small. Remember, Dan White’s infamous “Twinkie defense” in his murder trial for killing San Francisco Mayor George Moscone and Supervisor Harvey Milk worked only once.