This article contains material that may be disturbing to some readers.

Former Nine Network reporter Ben McCormack was sentenced to a three-year good behaviour bond today after pleading guilty to two counts of transmitting, publishing or promoting child pornography.

McCormack, under the username “oz4skinboi”, had chatted for some months via Skype with a Perth primary school teacher about their mutual sexual attraction to boys as young as three. McCormack described himself in the messages as a “proud ped, proud b[oy] lover”. In another, McCormack says of underage boys:

They are sooooooo beautiful, I want to make love to one so badly.

Outside court following a hearing earlier this year, McCormack’s lawyer insisted that the exchanges were “nothing more than fantasy talk”. In considering the objective seriousness of McCormack’s offending, District Court judge Paul Conlon specifically noted that the conversations were purely fantasy, and harmed no actual child victim, as reducing the overall severity of the offence.

But does “fantasy talk” stack up as an excuse under Australian law?

What the law says

Australia has a comparatively broad range of child abuse criminal offences. The Commonwealth Criminal Code provides for a number of telecommunications offences relating to the use of a “carriage service” (the act’s term for internet technologies) to involve children in sexual activity.

Conduct prohibited includes the possession and distribution of child pornography, “grooming” or “procuring” a child for sexual activity, and acts of indecency toward children. The maximum penalties for these offences range from seven to 15 years’ imprisonment.

These provisions complement offences in each state and territory of more traditional sexual offending against children. However, it is only in cases of online offending that the law must confront the prospect of sexually explicit child abuse fantasies.

‘Pure fantasy’ as a ‘defence’

There are some online child sex abuse offences in Australia for which a defendant’s claim that they were purely fantasising could excuse criminal liability.

More serious online offences, such as grooming or procuring a child for sexual purposes, require proof that the defendant held a specific intention. These intentions are often inconsistent with pure fantasy conversations.

For example, the procuring offence requires proof that the offender intended, at the time of the relevant conversations, to encourage, entice or recruit a child for sexual activity.

The inquiry as to the offender’s intention is subjective. However, the intention doesn’t need to be specifically determined for a defendant to be convicted; a general intent to engage in some form of sexual behaviour with the recipient is sufficient. The Victorian Court of Appeal has said the provision requires no proof of “fixed intention” at all.

However, it would be wrong to think of this requirement as imposing no burden on the prosecution.

Some engage in sexually explicit online conversations for the purpose of their own sexual gratification, and with no intention to act on them. These individuals could hardly be said to intend to “encourage, entire or recruit” a child for sexual activity. Discerning the offender’s true intention often requires a detailed review of the contents of online conversations.

My recent study found defendants raise the issue of “pure fantasy” to excuse them from liability only very rarely. However, the limited evidence available suggests that it is likely to be successful in defeating a charge of “grooming” or “procuring”.

In a 2013 case, the Victorian Court of Appeal held that it was incumbent upon the prosecution in grooming or procuring cases to exclude the reasonable possibility than an accused was “purely fantasising” when communicating with the recipient.

An alternative basis for liability

To say that motivations of this kind excuse someone from criminal liability is, to say the least, unpalatable. However, several other charges are available to police and prosecutors to cover fantasy conversations.

First, and as McCormack’s case illustrates, people engaging in such conversations may be liable to conviction for transmitting child pornography.

To some this may be surprising. Child pornography is typically understood to include videos and images depicting children in a sexual manner. But under Australian law, the definition of “child pornography” includes intimate physical descriptions of children, and of their participation in sexual activities. Fantasy conversations that are graphic or particularly descriptive are, therefore, prohibited.

Alternatively, if the conversations are directed to a child recipient, the conduct could be considered an “indecent communication”. Courts have consistently recognised the psychological harm predatory sexual conversations may have on children, even without an intent to cause physical harm to them.

Therefore, an offender’s claim that online conversations were “nothing more than fantasy talk” may excuse them from liability for some offences. But Australia’s legal regime for online child abuse offences is sufficiently expansive to criminalise this kind of conduct.