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Defendants Plead Fantasy Charged with using the Internet to lure minors into sex, defendants claim they were engaging in a harmless fantasy -- with a consenting adult. By Jack Karp TECH TV December 25, 2001 When federal agents and New York police officers raided a New York hotel room and arrested John Weisser in April 2000, they had what they thought was an open-and-shut case. For four months the 38-year-old California man had been using AOL's Instant Messenger to chat with undercover agents collectively posing as a 12-year-old boy. Weisser had sent the agents a naked picture of himself, written that he wanted to have sex with the fictitious boy, and finally invited the boy to meet him at a hotel room in New York. "We had the laptop computer that the defendant was sitting at when we came in," Peter Cavicchia, a group supervisor in the electronic crimes task force at the US Secret Service, told "CyberCrime." "There was a video camera in a backpack and a tape that was kind of cued up and ready to go. There was a CD with child pornography on it in his briefcase. We seized a pornographic videotape and other sexual paraphernalia, as well as an AOL CD that we believe was used to install AOL the night before he was arrested." "The combination of the forensic examinations that were done on the defendant's work, home, and the computer that was seized from the hotel, along with the testimony and the admission of all the chat conversations that were had by the defendant and our undercovers, I think were the perfect combination," Cavicchia said. But at trial, Weisser's lawyer insisted that the case wasn't as simple as it first seemed. Paul Dalnoky, who originally defended Weisser, argued that his client never actually believed he was chatting with a 12-year-old boy but knew he was corresponding with an adult who was only pretending to be a child. "I truly believe that John really felt that he was talking to people who were role-playing," Dalnoky said. "I don't believe he really believed there would be a child at the other end." "If you don't believe that you're really talking to a 12-year-old, you haven't committed a crime," Dalnoky said. "It's not a crime to talk to grown-ups." Dalnoky's argument is something that has become known as the fantasy or role-play defense, said Cameron Malin, assistant state attorney with the computer and high tech crimes unit of the Miami-Dade County State Attorney's Office. Although not connected with Weisser's prosecution, Malin has been involved with several fantasy defense cases. "The fantasy defense is based upon the proposition that the defendant never really believed that he was engaging in chat or a cyber-relationship with a minor," Malin explained. "[The defendant] thought that he was chatting with a consensual adult who also shared the same fantasy/fetish that he had. Thus, when the defendant traveled to the meeting place, he was not there to entice or have sexual conduct with a minor and therefore did not commit a crime." That argument is becoming increasingly common in online enticement cases, Malin said. A precedent without a verdict In 1999, attorneys used the fantasy defense to defend Patrick Naughton, who was arrested after arranging to have sex with a 13-year-old girl he had met in an Internet chat room. Naughton, who was a vice president at Infoseek at the time of his arrest, had used the name HotSeattle while chatting with the young girl, known online as KrisLA, on and off from March to September of 1999. The flirtatious chat sessions included exchanges in which Naughton suggested that the two meet. "I can take my clothes off and let you explore," he offered. KrisLA responded: "You don't care that I'm 13?" "Yes, I do care," he said. "Why?" KrisLA asked. Naughton answered, "It makes you special." After several months of similar exchanges, Naughton finally invited KrisLA to meet him on a pier in Los Angeles in September of 1999. But when Naughton arrived at the pier, KrisLA turned out to be an undercover sheriff's deputy. Naughton was arrested and prosecuted for possessing child pornography, crossing state lines to have sex with a minor, and using the Internet to arrange sex with a minor. At trial, however, Naughton's lawyers claimed their client had fully expected to meet an adult woman when he arrived on the pier. Naughton had only been fantasizing about having sex with a minor and knew the person with whom he was corresponding was actually an adult, they said. They portrayed the Internet as a new territory where people could talk about sex anonymously and live out their fantasies. Naughton, they said, was playing a game in which he was only one of many participants. After four days of deliberation, the jury hearing the case announced that it was hopelessly deadlocked. Jury members were evenly split according to gender. The six men on the jury believed Naughton's fantasy defense while the six women did not, according to jurors who spoke with members of the press after the trial. Several jurors also believed law enforcement officers had acted too quickly, arresting Naughton as soon as he showed up to meet the undercover officer he allegedly thought was a young girl rather than waiting for him to demonstrate his intent. The jurors did agree that Naughton was guilty of possessing child pornography, however, and convicted him on that charge. After the verdict, Naughton pleaded guilty to the other charges rather than be tried a second time. He also made a deal with the government and, in exchange for helping to develop a computer program that would allow the FBI to remotely access future suspects' computers, he was sentenced to only nine month's home detention and five year's probation, according to an August 2000 report in the Seattle Times. It was a light sentence compared to the 15 years in federal prison Naughton could have faced. Prosecutors worry that defendants like Naughton and Weisser will continue to get light sentences, or no sentences at all, as a result of the fantasy defense. "It is becoming more prevalent," Malin said. "I think that the trend is going to show that as more and more of these arrests are made, it's going to become more difficult for prosecutors." Malin is particularly concerned that as pedophiles become increasingly aware that the chat rooms they visit are likely to be frequented by undercover police officers, they will begin purposefully slipping key phrases -- such as "We're just pretending, right?" or "You don't sound like a child" -- into their chats to set up future fantasy defense claims. "They're becoming savvy enough to know," Malin said. "They have discussions about how to get around this. They know the case law as well as we do." Whether Weisser ultimately will be let off as easily as Naughton was remains to be seen. Weisser was convicted by a federal jury of communicating with a minor, traveling to have sex with a minor, and possessing child pornography, and faces up to 30 years in prison. He will be sentenced on June 22. His now-former lawyer Dalnoky says he'll probably only serve about seven years at the most. Weisser plans to appeal the conviction with the help of a new lawyer. Whatever the sentence and the outcome of the appeal, Cavicchia says Weisser's fantasy defense is no defense at all. "Things were not just said but they were done," Cavicchia said. "They were followed through on. The defendant didn't just say things. He said he was going to do something, and he did it. Where's the fantasy in this?" This article was first published on May 15, 2001 and is based on original reporting by "CyberCrime" senior producer and co-host Alex Wellen. source: http://www.techtv.com/cybercrime/viceonline/story/0,23008,3327010,00.html --via http://techPolice.com archive: http://theMezz.com/cybercrime/archive subscribe: [EMAIL PROTECTED] --via http://theMezz.com ==^================================================================ This email was sent to: archive@jab.org EASY UNSUBSCRIBE click here: http://topica.com/u/?b1dhr0.b2EDp2 Or send an email to: [EMAIL PROTECTED] T O P I C A -- Register now to manage your mail! http://www.topica.com/partner/tag02/register ==^================================================================
