Cyber War and the Emergence of the Borderless Criminal: Why the Melchert-Dinkel Serial Killer Case Should Be a Slam Dunk . . . For the Prosecution

“The basis for the assimilation or perhaps reconciliation of virtual and physical realities in terms of law enforcement starts with the basic premise of criminal law, which as Susan Brenner who is the NCR Distinguished Professor of Law and Technology at the School of Law stated in a May 6th, 2009 article, is about “preventing the infliction of harm.”

Brenner went on to say that “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed.”

The above is the excerpt from Chapter 7 of my latest book (a collaborative effort with Dr. Richard Weinblatt) titled “Tasers, Abortion and Parenting: Behind The Curtain of Policing America” which will be released in September 2010.  (Note: check out the following Chapter 5 “Anesthetized Parenting” excerpt from the book through the following LINK.)

The long and the short of the William Melchert-Dinkel case, is that by his own admission he misrepresented himself to vulnerable and emotionally ill people over the Internet as a young, female nurse, coaxing them to commit suicide and requesting that they allow him to watch them take their own lives via webcam.

Having confessed to encouraging dozens of people to commit suicide over the Internet, he is now facing trial in Rice County, Minnesota for two deaths in which he played an integral part.  One is the suicide of Nadia Kajouji, an 18 year old university student from Ottawa, Canada and the other a 32 year old man (Mark Drybrough) from Coventry in the UK.

While we will be delving into the question of whether or not Melchert-Dinkel is a new breed of serial killer – after all he provided Drybrough with detailed instructions on how to hang himself, right down to the placement of the knot on the noose so as to leave a distinguishable impression behind his left ear (a signature of a serial killer as far as I am concerned), when I interview renown criminal profiler Pat Brown on September 1st at 10:00 PM EST, laws of the physical world have indeed been broken.

With regard to Nadia Kajouji, Section 241(b) of the Canadian Criminal Code, which prohibits the giving of assistance to commit suicide, as stood up to what can be referred to as legitimate challenges such as the landmark 1993 Canadian Supreme Court decision in the case between Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519.

In the 1993 case, 42 year old Sue Rodriguez, who had been diagnosed in 1992 with amyotrophic lateral sclerosis (otherwise known as ALS or “Lou Gehrig’s disease”), sought to have the law overturned based on the argument that it was contrary to the Canadian Charter of Rights and Freedoms.  In a 5 to 4 decision, the court upheld the provision in the Canadian Criminal Code.

Even in Minnesota, the jurisdiction where Melchert-Dinkel is facing trial for the Kajouji and Drybrough deaths, an August 24th, 2010 article in the stpeterherald.com website by Derek Wehrwein, reported that what is “at issue is a Minnesota law that makes illegal intentionally advising, encouraging or assisting another in taking the other’s own life.”

However, and here is where there is considerable gray area, the law according to Wehrwein “doesn’t specifically address situations involving communication via the Internet.”  This as it turns out is the basis upon which some legal experts (including Melchert-Dinkel’s lawyer Terry Watkins) have suggested that freedom of speech issues could play a role in the case.

The issue of free speech notwithstanding,  we are now brought back full circle to Susan Brenner’s May 6th, 2009 article that happens to share the same views associated with the introduction of Bill M-388 in late 2009 by Canadian Member of Parliament Harold Albrecht.  Bill M-388 “urges action against those who counsel or assist in suicides, specifically targeting those suicides that are promoted through the internet.”

The Honourable Harold Albrecht

Albrecht’s motion which it should be noted was passed, and came about as a result of the death of Canadian citizen Nadia Kajouji reads, “That, in the opinion of the House, for greater certainty, the government should take steps to ensure that counseling a person to commit suicide or aiding or abetting a person to commit suicide is an offence under section 241 of the Criminal Code, regardless of the means used to counsel or aid or abet including via telecommunications, the Internet or a computer system.”

This leads to an even bigger question with considerably broader consequences . . . if it is considered to be a crime in the physical world, why would it also not be considered a crime in the virtual world?

In the Brenner article, she argued that “even though cybercrime—like witchcraft—departs from the traditional model of crime insofar as it involves the use of “otherworldly” forces, this, alone, does not justify creating specific cybercrime offenses.”

Brenner then went on to argue “that even though it involves conduct vectored though a non-corporeal reality, cybercrime is merely a method crime, i.e., crime the commission of which is distinct due to the tool the perpetrator uses,” and therefore “we do not need a “law of cybercrimes;” we can address cybercrime by using traditional offenses that are revised, as necessary, to encompass the digital versions of these crimes.”

Susan Brenner

I must admit that Brenner’s approach does seem to be quite logical and even reasonable.  Certainly, and following Brenner’s train of thought, the amendment of an existing law versus the creation of a new “cyber” law would represent a less onerous process and, serve as merely an extension of the principles behind a current law.

Perhaps at the risk of presenting an overly simplistic analogy, if before the invention of guns I intentionally kill someone with a knife during the commission of a robbery, am I not guilty of murder?  The introduction of a gun or a laser beam as my weapon therefore should not change the basic premise that by my hand another person would be dead.

What are your thoughts?

Once again, remember to use the following link to access both the Live and On-Demand broadcast “Is The Internet A Safe Haven For Serial Killers?” on Wednesday, September 1st at 10:00 PM EST.

Links to previous PI Window coverage of this story:

August 25th, 2010

The Serial Suicide Killer (Internet TV)

Is The Internet A Safe Haven For Serial Killers? (Blog)

How Many More Nadia’s: The Serial Suicide Killer Finds A Loop Hole (Internet Radio)

August 24th, 2010

How Many More Nadia’s: The Serial Suicide Killer Finds A Loop Hole (Blog)

August 21st, 2010

Are First Amendment Rights Becoming The Ultimate Excuse For Bad Behavior? (Blog)

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