Punishing Sexual Fantasy

74 Pages Posted: 9 Sep 2016 Last revised: 16 Jan 2017

See all articles by Andrew Gilden

Andrew Gilden

Willamette University - College of Law

Date Written: September 7, 2016


The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy easily convert into damning evidence admissible in court.

This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet. It shows, for the first time, that judges and juries have repeatedly conflated sexual fantasy with harmful criminal conduct, have largely been dismissive of fantasy-based defenses, and have relaxed evidentiary standards to prejudice individuals whose desires provoke disapproval or disgust. Even as celebrated decisions by the United States Supreme Court provide broader constitutional protection to sexual minorities, this Article shows that actual venues for exploring sexuality remain on the social and legal margins. Drawing from recent criminal law, family law, and First Amendment cases, this Article shows that courts have struggled to adapt free speech, privacy, and due process principles to the uncomfortable realities of the digital environment.

Keywords: Sexuality, Internet, First Amendment, Criminal Law, Family Law

Suggested Citation

Gilden, Andrew, Punishing Sexual Fantasy (September 7, 2016). 58 William & Mary Law Review 419 (2016). Available at SSRN: https://ssrn.com/abstract=2836200

Andrew Gilden (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States

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