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Fantasising online. Is it a crime?

Hello again Dear Reader,

Today I would like to start by offering you a hypothetical. Let's pretend that you are a senior judge in your country's judicial system (and if you really are, just go along with it!).

A person has been brought before you charged with a serious crime. After a thorough investigation by the police, this person was found to have engaged in online discussions with like-minded adult individuals in chat rooms where they discussed their desires and fantasies for carrying out acts of the most vile and unspeakable type. Acts which if carried out or if even only planned would clearly be illegal under your country's criminal law code.

Now, this person has not to date acted on any of these depraved fantasies, has not carried out any overt planning that would tend to indicate their intention to commit this act soon, but has spoken of their desire to do these things online on numerous occasions over a long period.

You are the sole decider of this person's fate before the law. Are they guilty of committing a crime? Do you say 'guilty' even though they haven't actually acted out their fantasies, but by ruling so possibly prevent any future illegal activity that may have brought another person to harm? Or do you say 'not guilty' as they haven't actually done anything yet, and in doing so possibly allow this person freedom to commit this crime in the future and harm another person?

For now, why don't you grab yourself a cuppa and have a good long think about this person's fate and the possible ramifications on both them and society. We'll continue when you're ready.

Ok, we're back. Guilty or Not Guilty?

To further assist you in your deliberations I would like to introduce as case exhibits A and B two true cases that both relate in some ways to your decision.

Case Exhibit A is from New York, USA. On October 25, 2012, a New York Police Officer was arrested and charged with conspiracy to commit kidnapping. The arrest occurred after police discovered that he had been actively communicating in forums dedicated to fantasis involving torture, rape, murder and cannibalism. The officer had been chatting with another user about torturing, murdering and cannibalizing more than 100 women, including his wife. Throughout the trial, he claimed that his online communications were pure fantasy and that he had no intention of ever acting on them.

He was found guilty in March, 2013.

But now it gets interesting. On appeal, the Federal District Court overturned his conviction in June, 2014, agreeing that he 'was only engaged in fantasy role-play'. The government appealed the dismissal. In December, 2015 the United States Court of Appeal for the 2nd Circuit agreed with the Federal District Court that based on online discussions only, no crime had been committed.

Ok, got that? Pretty straight forward yeah. According to US law, talking about evil shit online with other adults may be disgusting, be depraved and morally unacceptable...but it isn't illegal.

So, Case Exhibit B. Now we get to travel from New York to Sydney, Australia. In April, 2017 a well known Australian journalist was arrested and charged with using a carriage service for child pornography material. He pleaded guilty to two charges in September, 2017 and is currently going through the sentencing process.

He faces a maximum 15 years in jail.

Fair enough yeah? But as in Case Exhibit A, now it gets interesting. In putting forward the Brief of Evidence, the police alleged that the journalist had engaged in explicit conversations about children with an adult male and discussed child pornography. At no stage is the journalist alleged to have traded or possessed illegal images, attempted to groom a minor online or in anyway act upon his depraved conversations. As per our New York chap, the journalist claims that his conversations were pure fantasy role-play.

So, he talked filth online about things that make our stomach turn. He didn't act on it, but as one journalist noted, "The problem is that everyone, including his lawyer, knows that actual pedophile crimes were the next step. After all he communicated to a man heavy pedophile on-line fantasies." If he thinks about it, goes out and finds like minded people online to talk about, then acting on it must be the next step. So let's stop him before he hurts someone.

Ok, so after looking at these two real cases, in many ways similar, but treated quite differently, how are you feeling about the person in your dock now? Are they guilty, because we know what comes next and we will always do whatever is necessary to protect the innocent and vulnerable in our society? Or are they innocent, because they haven't actually done the crime that we're really scared of and we're not going to throw someone in the slammer for years based on the sick crap that's in their head.

Your'e the judge.

The defendant, the lawyers, the media and the public are back in and waiting for your decision.

Over to you.

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