Fantasy On Trial (Again)

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I’m on my way home from Denver, where I testified as an expert witness at a deeply troubling trial—a trial that’s become way too common in America.

Here’s the situation: The defendant “Mr. Jones” goes into a Yahoo adult chat-room, and makes it clear he wants to have conversations about sexually dominating a young person. A person responds—let’s call her “Missy”—who says she’s a teen who would gladly chat with a wiser, older man about the ins and outs of sexual things.

“Missy” says she’s 14, and she and “Mr. Jones” proceed to exchange hundreds and hundreds of emails, IMs, and phone calls, which range from the incredibly boring to the graphically sexual. He discusses how one day she’s going to be sexual with men, and therefore he helpfully instructs “Missy” to put her fingers in her vagina, practice sucking them, etc.. On the other hand, he never invites his correspondent to meet him, never sends “Missy” money or gifts, never sends her pictures of adults having sex with minors.

One day, out of the clear blue sky, police arrest the real Mr. Jones: it turns out that “Missy” is actually a police detective who was hanging out in the chat-room, and Mr. Jones has broken the law against adults discussing sex with minors over the internet.

But wait, says Mr. Jones—he wasn’t discussing sex with a minor, he was discussing sex with an adult pretending to be a minor. He didn’t realize the adult was a detective—he didn’t even know what gender the adult was, much less their occupation—but he was playing a character version of himself, confident he was talking and corresponding with an adult playing the character called “Missy.”

He didn’t want to talk about sex with a kid, he says, much less have sex with a kid.

But the great state of Colorado put Mr. Jones on trial, accusing him of grooming a would-be minor for illegal sexual contact—which, although he hadn’t arranged, nor attempted to arrange, they claim he wanted to arrange. Sometime. Probably.

His lawyer hired me as an expert in erotic fantasy roleplay. And so I read transcripts of the phone calls and emails which had led to the arrest. I did not meet, much less evaluate, Mr. Jones.

Months later—yesterday—I was in court. As an expert witness, I was asked dozens of questions about fantasy role-playing—which of course many adults do in various ways. Some do it through Second Life, some through Civil War reenactments, some through World of Warcraft—and some through chat-rooms.

Some adults play with fantasy roles in their bedrooms. Maybe she wears a little plaid skirt and lace socks (made in adult sizes for just this purpose), and coos at her partner “the principal.” Maybe she pretends to be a high-priced hooker and he pretends to be a customer. More politically-minded people enjoying playing the Madelaine Albright-Henry Kissinger erotic (?!) fantasy game.

The prosecution tried to get me to say that most people who fantasize are sick, which I wouldn’t. They tried to get me to say that people’s fantasies indicate what they want to do in real life, which I wouldn’t. They tried to get me to say that Mr. Jones’ calls and emails were typical grooming behavior. I pointed out the fundamental flaws in their reasoning: he had met “Missy” in a chatroom for adults, not for fans of Miley Cyrus or the Jonas Brothers. And after a thousand emails and phone calls, he never said anything like, “Let’s meet. We’ll have a great time. When are you free? I’ll send you money for a bus ticket.”

There were plenty of questions about me: my campaign against the concept of “sex addiction”; my observations that America is panicked over highly distorted estimates of how many predators troll for kids online (I quoted scientific studies, including the latest one from Harvard); whether or not I believed it was OK for adults and 14-year-olds to have sex (which I wouldn’t answer, not wanting to obscure the fact that there was no 14-year-old in this case), and many, many more. That’s how I spent yesterday afternoon.

This morning, the jury gave their verdict. Afterwards, in private conversations, they told Mr. Jones’ lawyer that I was clearly an expert, warm and persuasive, and that they had learned a great deal from me about psychology and sexuality. They said they were troubled by the flaws I had pointed out in the prosecution’s case, and they laughed at the D.A.’s inability to rattle or insult me. Several said if they were ever in trouble, they hoped they’d be represented in court as well as Mr. Jones had been.

But they found him guilty. They were afraid to believe him.

Was he really trolling for a kid to have sex with? I don’t know—I never spoke to the guy, certainly never evaluated him clinically. But the burden was not on him to prove he wasn’t. Since the State had taken the trouble to arrest him, humiliate him, accuse him, and destroy his life, the burden was on the State to prove, beyond a reasonable doubt, that his behavior was calculated and dangerous.

A juror’s fear wasn’t supposed to play any role in their decision. They were supposed to rely on the facts to decide whether the State had proved, beyond a reasonable doubt, that there was no “Mr. Jones”—that Mr. Jones believed he was talking to a kid, and that he was talking to her about sex so he could ultimately arrange to have sex with her.

In the end, fear was primarily what the 12 jurors relied upon.

And so, regardless of what Mr. Jones actually had in mind, justice was not done. As a result, our country—and you, personally—are less safe.

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