I didn’t say word one about morality or ciminality. Just legality.
How can he repeat an assertion that was never made? “No big thing” and “just fine” are not the same thing.
Once again - I’m aware that you agree any assault is bad. That wasn’t the issue.
This sort of law would need to be written, fast. A virtual character has a lot more degrees of freedom than a physical person, and could harm another virtual character in a range of unprecedented ways. Any such harm should be considered assault, and should be preventable by laws and built-in safeguards.
Note as well that some or many people would be willing to have sexual or other kinds of encounters, so these safeguards would need to be over-ridable at will (by both parties, at any stage in the proceedings).
One imagines being presented by a range of checkboxes and permission buttons whenever things start to get interesting. Quite possibly safer than real-life in that respect.
Well, in real life it would not need to be written quickly, since the evolution of the technology would itself take place over years, which almost makes it messier. If we fast forwarded into a world where suddenly the full-fledged technology existed, I agree, unspeakable horrors would be taking place in all kinds of ways. At least in that case the problem would have an obvious shape so the legislation in reaction could be clear.
We’re already in a place where cyber-bullying is at least a potentially criminal act. The more ways that harm can be inflicted on another person electronically, the more the law will need to evolve to keep up with that, and it’s not obvious when a “new” kind of harm is occurring vs. when it’s an old offense being done a new way vs. a kind of conduct that is bad but non-criminal.
This is getting a little heated…
I didn’t reply earlier because I’ve had very little free time but I’ve been reading the thread with interest and didn’t want to derail things by narrowing down the scenario but ‘near future’ might be misleading because in the context of the story its a near-future alternate-timeline…yes, I know.
It’s more like what Jimmy_Chitwood described below, basically the main character invents headsets which let people experience a very realistic VR environment by direct stimulation of the brain, she has passed a few of these out to friends as a trial and given one to the person mentioned in the OP as she felt sorry for him, he’s only a friend of a friend, so basically he both abuses the person he assaults and also her trust in him for letting him have the headset in the first place.
The VR environment is more like Second Life social meeting place than a game and the incident in the OP takes place in a private room.
Both the headsets, the VR environment and the sexual assault are a small part of the overall story which is generally light and fun but I thought it was an interesting question.
Please don’t argue about the likelihood of such a technology, I know its not realistic!
Thanks for the answers everyone, this has been a fascinating read!
Yeah, in the situation you describe in the OP, with that additional context, it’s likely that he’s going to be successful in his defense.
If they haven’t added some kind of language to the criminal statutes that either update the definition of a “Person” to include a virtual representation, add a specific new crime that is sexual abuse of a person via [name of new technology], or update the definition of sexual assault to include virtual sexual contact, they’re going to be out of luck trying to charge him with a crime that fits what he’s actually done.
Personally I think unless the technology is so advanced that it would be commonly understood that your avatar and your physical being are essentially the same thing (pretty common trope, but incredibly far from 2023), what would make the most sense would be creating a new kind of offense. It would be pretty controversial, I think, no matter how you approached it. A person who was assaulted physically might object to the notion that something that happened on a computer was literally the same crime. And it goes without saying that since there are still a lot of people in modern day who don’t think a lot of real world, physical sexual assault is actually a crime, those people would also object to the idea of a virtual crime. At the same time, a person who was assaulted in a virtual environment might object to the notion that what they experienced was significantly less serious.
Even just typing out that paragraph it’s a little intellectually challenging. Using a phrase like “real world” to refer to a sexual assault in order to distinguish some other kind of conduct smacks of the kind of language that’s always been used to minimize sexual abuse. I suppose the ideological battle wouldn’t be all that different from how it’s always been.
I would still look into potential prosecution as stalking.
The federal stalking statute, in relevant part:
18 USC § 2261A
Whoever […] with the intent to […] harass […] another person, uses […] any interactive computer service or electronic communication service or electronic communication system of interstate commerce […] to engage in a course of conduct that […] causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person […] shall be punished as provided in section 2261(b) or section 2261B, as the case may be.
That could be relevant if your characters are in different states when the interaction occurs, or possibly even if they are communicating with internet servers physically located out-of-state.
An example of the stalking statute in my jurisdiction, Florida, in relevant part:
Fla. Stat. 784.048 (2022)
As used in this section, […] “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.[…]
A person who willfully, maliciously, and repeatedly […] harasses […] another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. s. 775.082 or s. 775.083.
The keywords here are repeatedly and harrass. If it was a one-time sexual harrassment, it wouldn’t meet the state statute no matter how much emotional distress is caused.
~Max
Stalking does tend to be the most flexible when some kind of catch-all statute is needed, but any definition is going to give you the same problem. A “course of conduct” is also by definition a pattern of conduct, not a single act.
In Florida it’s one step higher: you don’t just have to repeatedly do something, you have to repeatedly harass. And harassment already requires a course of conduct. So you have to engage in a course of conduct, then do that again (unless you’re cyberstalking or following, which is kinda circular, but either way).
Not a lawyer, but I’d think two different kinds of harrassment would work as well. For example there might be
The series of DMs would be a more traditional pattern of conduct, but one could plausibly argue that a virtual “sexual assault” consists of a number of acts over a short period of time - every time he speaks to or touches the victim in VR, that is an electronic communication initiated by him in real life and therefore an action. So for example groping two virtual body parts in succession could constitute a pattern of actions.
~Max
If we add facts creating a course of conduct, then we’ve got no problem with a course of conduct, so I agree with the first part!
As far as trying to parse a sexual assault into multiple acts constituting a course of conduct, there’s no black letter bar on it, but I’ve never seen it done successfully. Multiple forms/incidents of touching that occur one after another are generally considered one continuous “act” for the purposes of a course of conduct. In most jurisdictions there will be case law that says, basically, you can’t break what is truly a single ongoing action into multiple acts in order to make it qualify as a course of conduct, because the purpose of stalking/harassment statutes is that conduct that otherwise doesn’t rise to the level of criminality becomes criminal by virtue of persistence or repetition.
Here is a case setting that out for Massachusetts: F.K. v. S.C., 481 Mass. 325 | Casetext Search + Citator
Can’t look at Florida cases right this second because I have to begin drinking.
The Massachusetts statute is structured differently and doesn’t really seem comparable. The Florida statute says “repeatedly […] harasses”, but “harass” is defined in the singular as a course of conduct. You need at least two incidents of harassment, and each incident of harassment is its own course of conduct.
Put another way you need at least two incidents of at least two “acts” each. For statutes in other states it probably makes sense to consider an extended incident a single “act” for the purposes of a course of conduct. I think even repeat violence statutes in Florida consider it a continuous act if there isn’t a time gap. But in Florida’s stalking statute, “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” The defendant must have repeatedly engaged in courses of conduct directed at a specific person which caused significant emotional distress for no legitimate purpose.
Cash v. Gagnon, 306 So. 3d 106 (2020) reads “A course of conduct requires multiple acts that are separated by time or distance” but I’m fairly confident that was written by mistake, as the repeated “acts” of violence in the cited case are analogous to repeated harassment in a stalking case.
If I haven’t bored you to death already, here is how I would interpret the Florida stalking statute in a traditional case, and then below is an analogous VR case.
Warning: depictions of sexual harassment and virtual sexual assault
Monday: Alice is watering her plants by the sidewalk in front of her house. Bob, an unfamiliar neighbor, is walking down the sidewalk in an unkempt state. Bob turns toward her and lets loose a wolf whistle. Alice tells him to piss off.
Wednesday: Alice is watering her plants by the sidewalk in front of her house. Bob sneaks up behind her while she’s bent over and says “I like the view,” at which point Alice throws a pot at him and bolts inside, shrieking. No physical contact is made.
I say these would constitute stalking under the Florida statute.
The first instance of harassment is on Monday. The acts of looking at Alice (1) and wolf whistling (2) constitute “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In context, this pattern of conduct doesn’t serve a legitimate purpose and a reasonable person would expect it to cause substantial emotional distress.
The second instance of harassment is on Wednesday. The acts of sneaking up behind Alice (1) and saying “I like the view” (2) constitute “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In context, this pattern of conduct doesn’t serve a legitimate purpose and a reasonable person would expect it to cause substantial emotional distress.
Two instances of harassment count as “repeated” harassment, so I say taken together the two incidences above would qualify as criminal stalking (if the prosecution can convince the jury of malicious intent.)
Now for a more relevant example, if the OP were to have his character sue under Florida law as interpreted by me (non-lawyer).
Friday: Cassie is sitting in her room. Dave, a friend of a friend, DMs her unsolicited to ask if she’s “dtf” (down to fuck). Cassie responds “gross stop I don’t know u”, Dave responds “yet”. Cassie blocks him on Instagram.
Saturday: Cassie is sitting in her room with her BrainVR set on. In the virtual environment, she is in a friend’s private room, waiting for her friend to return. Dave is in his own house with his own BrainVR set on. Dave and Cassie share the mutual friend, and Dave’s avatar enters the same private room in the virtual environment. Dave sees Cassie’s avatar and commands his own avatar to grope hers. Cassie doesn’t resist, paralyzed by fear and horror like a deer in headlights. Sensory feedback is relayed directly to both of their brains as his avatar gropes her avatar’s breasts, then buttocks. Maybe two minutes pass before the friend returns and Dave disconnects from the service.
I say these also constitute stalking under the Florida statute.
The first instance of harassment is on Friday. The acts of sending two unsolicited DMs to elicit sex (1 & 2) constitute “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In context, this pattern of conduct doesn’t serve a legitimate purpose and a reasonable person would expect it to cause substantial emotional distress.
The second instance of harassment is on Saturday. The acts of sending commands to have his avatar grope Alice’s avatar’s breasts (1) and then buttocks (2) constitute “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In context, this pattern of conduct doesn’t serve a legitimate purpose and a reasonable person would expect it to cause substantial emotional distress.
Two instances of harassment count as “repeated” harassment, so I say taken together the two incidences above would qualify as criminal stalking (if the prosecution can convince the jury of malicious intent.)
~Max
Yeah, I don’t see anything wrong with that interpretation. That could be how it worked in practice. It just doesn’t. “Looking” and “whistling” would be looked at as a single act of looking at a person and whistling. Engaging in the virtual act of fondling would be a single instance of assault.
This comes up all the time in practice. The “plain meaning” turns out not to be what you thought the “plain meaning” was before the person in the robe told you what it was.
Well, hold on, there. Let’s say the stimulation is done through magnets, or electric fields, or whatever, through a helmet on the user’s head.
Let’s say someone you knew had a metal implant (say, an artificial joint) walked by, and you turned on a super powerful electromagnet to cause them severe pain and tissue damage. Surely the fact that you only interacted with the victim through electromagnetic fields would not change the fact that this is an assault.
Well, why would hitting someone with electrical impulses that make them feel like they are being assaulted not also count?
Because the statutes that define sexual assault generally specify exactly what physical touching must occur to make the offense. Penetration, contact with private parts or genitals, that sort of thing. The federal statutes literally list the parts of the body that count, although most states fortunately aren’t that tedious about it. “Sexual” touching that occurs via only the appropriate paths in the brain is not within the way those offenses are currently structured.
I think it’s a problem that would be quickly solved if technology got to that point, but it would require a change in the law to accommodate whatever specifically the technology was allowing.
You certainly can’t just say that a person’s virtual avatar counts as that person. One of the major markets for any sort of VR technology is going to be games, and a great many computer games are based on killing or committing other violence on other players’ avatars. The law already recognizes that fighting sports like boxing can be consensual and not count as assault, but you can’t legally consent to be killed. But you can legally consent to the possibility of your virtual avatar being killed.
And then, what about a non-consensual assault in a game? I can envision an extensive virtual world, which contains both violent and nonviolent parts in the same world. Such a world would probably contain something like “PVP (Player vs. Player) flags”, where a player can neither directly harm other players nor be directly harmed by them unless their PVP flag is set, which must be done voluntarily and usually on an opt-in basis… but it’s still fairly common, in games, for “griefers” to figure out ways around that, and indirectly cause harm to non-PVPers.
And what if the VR equipment is capable of causing pain? It might even be a selling point of a VR system to be able to cause small amounts of pain, to make fighting or other dangerous activities more “realistic”. And of course this capability would very likely exist in any sort of direct-neural VR, like the OP describes. If someone is using such a VR system, and someone else figures out a way to nonconsensually cause them pain, what do we do about that?
Sure, but I’m asking if it would qualify as simple assault, not sexual assault. California defines assault as the “unlawful use of force”, so would an electromagnetic force qualify?
I’m not sure that “direct stimulation of the brain” would be a get-out-of-jail-free" card. Okay, so you’re not interacting with the person’s skin, you’re actually interacting directly with their brain. Well, that’s still a physical process; obviously the machine would have some means of stimulating key neurons to produce an effect. Sure, we’ll call it “virtual”, but that brain stim is a real-world effect.
The attacker is still deliberately using a physical means to cause suffering to the victim. Just because that physical means is one more step removed from just using your hands doesn’t change things.
So even in this case, I think we could still apply current laws on assault.
Yep, no problem there.
A little presumptuous there, no?
Interesting contributions to the thread though!
I would personally consider there to be little difference to assaulting someone in real life, though some people might disagree because there is no actual physical impact on the persons biological body.
It is still something you are voluntarily signing up for knowing the consequences. This smacks of “I got PvPed in a PvP game, someone should do something”. If you are in VR with sensory equipment on in an space that allows other people to hack you to pieces you are not being MADE to do anything, you specifically geared up and went there knowing it could happen. I doubt anyone is getting hacked to pieces in VR animal crossing, or whatever the future equivalent is.
Bit of an equivocation there with the word “allows”. No one is disputing that someone knowingly joining a fighting game would not have a case for assault arising from contact that is considered normal in such a game. The question in the OP is about an abuse of such a system, to have contact with someone outside the accepted norms of the simulation. Just because we know that this may be physically possible prior to joining doesn’t mean it’s “allowed” in a moral, ethical or legal sense, any more than knowing you might be groped on a dance floor makes it okay to grope people at night clubs.