By Alex M. Samaei
Virtual Reality is estimated to have an annual revenue of $150 billion by 2020. This is because of companies such as Facebook, Google, and Microsoft investing heavily in the technology to make it more realistic and immersive. Industry has been able to utilize this new tool so users can immerse themselves in life-like 3D environments. So far it has been used to train medical students and police officers in behavioral research, and to create realistic gaming environments. However, one social issue that has reared its head is sexual assault in virtual space. This occurs when there is sexual contact in virtual reality that occurs without the explicit consent of the recipient, such as groping, and there are already reported cases of it occurring. This a step above online sexual harassment, which would consist of anything between stalking and unwanted picture messages.
Statues have passed in most states to protect against specific forms of cyberbullying and online harassment. Usually this consists of criminal laws designed with the purpose of protecting children. However, as technology advances we must ask that if a child can be protected, why not adults? To what extent and how? Until technical solutions are implemented that can truly solve this issue, there is a strong possibility that charges will be filed in the near future.
Lawsuits can either be civil or criminal. Under these categories, there are hundreds of charges that could potentially be brought. There may be a statutory criminal violation or a breach of contract between the user and the game developer. Here, I would like to focus on civil litigation, and specifically tort law. Torts occur when there is a right has been infringed or when a wrongful act occurs that can result in monetary damages.
The most well-known torts are assault and battery. In the real world, these require an act that causes an intentional and harmful or offensive contact with the plaintiff’s person. This definition means there is little chance of success in virtual reality. With no physical contact, one of the key elements can never be satisfied. Of course, there are technologies being developed where a user can “feel” what’s happening to their avatar through specialized clothing and equipment. This is done by exerting pressure on a user based on what’s happening to them in virtual reality. However, this technology is not widely available yet and has a long way to go before the force exerted could be considered an intentional touch by another user.
There are obvious dangers in treating real world sexual assault like virtual reality. For one, it devalues the pain and suffering that victims go through during these traumatic instances. On the other hand, victims in virtual reality can also suffer real trauma. Stanford University’s Virtual Human Interaction Lab found that the same areas of the human brain light up when you have a virtual reality experience as a person does during real world experiences. This means the experiences we have in these realistic games can in fact affect us emotionally.
Recovery might be possible using a claim of intentional infliction of emotional distress (IIED). This is a relatively new area of torts law where one can be found liable if they intentionally acted in an extreme and outrageous manner that caused severe emotional distress to the victim. Up until now, IIED has not been very popular with many courts, but today it could be used as a bridge between virtual reality sexual assault and real world sexual assault because it deals with the trauma suffered and not the vehicle by which that trauma was caused.
The trickiest part of an IIED legal argument would be showing that the conduct was outrageous enough to “go beyond all reasonable bounds of decency.” Normally, this is found when conduct is continuous or is exploiting a known vulnerability in the victim. Words alone are not enough to be considered outrageous, but the overall standard is lowered when the victim is either a young child, elderly, or pregnant. When considering outrageousness in virtual reality the requirement should be satisfied if it similar conduct would be outrageous on the phone or email at the very least.
What would be considered outrageous in a virtual reality game? This involves several factors that would vary on a case-by-case basis. For example, what type of game is it? Is this game widely-known for this type of conduct, or is it designed for a “PG” audience? Does the user have the ability to log out or protect their avatar? Some dedicated online gamers would attest that it is possible to develop a bond with an avatar. Many users make their avatar resemble themselves or creative creatures from their imagination. After dedicated countless hours, money, and creativity expended to customize a personal character that they embody, one can imagine that some users are attached to these virtual creations. If a user is in a realistic virtual environment and in an avatar that they are emotionally connected with, then it really could be a traumatizing experience. Depending on the circumstances, they may rise to the level of outrageous.
If the defendant’s conduct is also found to be intentional and the cause of extreme emotional distress, then IIED may be a plausible tort for virtual reality sexual assault. Of course there are various factors that would all need to occur for a claim to have a chance of success under current law. However, as technology develops and human interactions move to cyberspace, so too will the law. Criminal statutes will be developed with new methods of deterring this conduct. Civil law will similarly need to grow, and IIED is a tool that might just be ready for that change.
Student Bio: Alex is a Staff Member on the Journal of High Technology Law. He is also Vice-President of the Intellectual Property Law Student Association. He is currently a 2L at Suffolk University Law School, and possesses a B.S. in Industrial & Systems Engineering.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.