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The state can't read its citizens' thoughts-- not yet, anyway. Its hands thus tied, the closest the government can come to prosecuting thought-crime is throwing people in prison for what they've written in their diaries. That's what Ohio has done to Brian Dalton.

On July 20th, Common Pleas Judge Nodine Miller sentenced Brian Dalton, 22, of Columbus, Ohio, to seven years in prison for erotic fantasies he spun out over 14 pages in his journal. Dalton's imprisonment for private jottings marks a new high-water mark in America's ongoing hysteria over youngsters and sex.

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Dalton's storyline was outré-- describing a scenario wherein he trapped three children-- 10 and 11 years old-- in a basement, locking them in a cage and subjecting them, according to reports of the diary, to various sexual tortures.

But the children had made-up names and the events described were purely imaginary.

"This is really like thought-crime," Jillian Davis, staff counsel for American Civil Liberties Union of Ohio, tells The Guide. "He was just writing down his thoughts and did not act on them." The Ohio ACLU has pledged to assist Dalton at a retrial-- if Judge Miller allows him to revoke his guilty plea, as Dalton is requesting, on the grounds that his court appointed attorney was incompetent.

Kiddie criminal

Rare for a case involving kiddie sex, Dalton's conviction has brought protest from the likes of the New York Times and Wall Street Journal.

"Sexual hysteria has given the thought police the opening they've craved," wrote Times columnist Bob Herbert. "Politicians, afraid of being accused of favoring child pornography, will not stand up for that most fundamental of freedoms-- freedom of thought."

Dalton was already on probation after being convicted in 1998 on charges of "pandering" child pornography, a crime apparently committed when he was a teenager. He had served a few months in jail and was out on probation living at home with his parents. Under terms of his release, officers had rights to go through Dalton's personal effects. But in this case, his parents had found the diary and handed it over to the cops, hoping, they said, that he would get counseling for his violent fantasies.

At first, police believed Dalton had committed the acts he described, but they could find no evidence of any crime, and came to believe Dalton's assertion that his writings were pure fantasy. That's when prosecutors dusted off a 1989 Ohio obscenity statute that makes it a felony to create "any obscene material that has a minor as one of its participants."

Presumably the law was meant to cover the case of, say, a porno film that a jury found "obscene" (relatively easy in Ohio) wherein one of the adult actor's 15-year-old kid brothers could be seen in the film watching the action from the sidelines. But in this case, prosecutors decided-- bizarrely-- that a nonexistent, purely fictional character could meet the definition of "minor" under the law.

Once the DA decided to prosecute, conviction was easy. Dalton's writing so shocked a grand jury that it asked a detective to stop reading after two pages.

"I know what I wrote was disturbing," Dalton told the court at his sentencing. "Over the past few months, I looked back at it and realized it was not something I could do. I don't know how I imagined to write anything like that."

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But Dalton's themes are the same as those of countless prime-time TV specials and shock-novels that barely conceal their salacious fascination in the horrors they expose. If Dalton's conviction holds, anyone who conjures a daddy-boy fantasy on their computer or lends a friend a volume of Boyd McDonald's sex histories could face years in prison.

The law under which Dalton was convicted makes no distinction between visual, written, or oral communication, says the Ohio ACLU's Davis, which means that someone merely telling a story or speaking to a psychiatrist could be prosecuted-- as could a therapist who records a client's fantasies in his notes.

Catch 22

Dalton was convicted under an obscenity law-- not for child pornography. But his case is au courant, as the US Supreme Court is hearing a case this fall on the constitutionality of extending much-harsher kiddie porn laws to cover nonexistent minors, as a contested federal statute now does.

Though his parents handed over the diary to authorities in the hopes of getting their son counseling, his sentence makes no provision for it. If Dalton is released and then convicted again on fresh charges-- which the Franklin County DA is preparing in case his obscenity conviction is overturned-- Dalton may be subject to mandatory sex offender treatment. What would Ohio's Department of Rehabilitation and Correction then require Dalton to do, on pain of being held in prison permanently, or, if released, being sent back?

"There would be group sessions," says David Berenson, the department's Director of Sex Offender Services. "They would be discussing their sexual feelings in terms of managing them." It would be "very typical," Berenson adds, to assign offenders written homework. "You might have them doing journals or thinking-logs or something like that." Just the sort of writing for which Dalton now languishes in prison.